IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0     ^Ui  lii 

^^s    itt  Bi   12.2 

1.1   1.'""° 


Hioiographic 

Sdenoes 
Carporedian 


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'V 


23  WIST  MAIN  STRHT 

WnSTIR,N.Y.  14SM 

(71*)t72-4S03 


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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICIVIH 
Collection  de 
microfiches. 


Canadian  Institute  for  Historicai  iVIicroreproductions  /  Institut  Canadian  de  microreproductions  hittoriques 


Technical  and  Bibliographic  Notos/Notas  tachniquaa  at  bibliographiquaa 


Tha  Inatituta  haa  attamptad  to  obtain  tha  baat 
original  copy  avaiiabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibliographicaiiy  uniqua, 
which  may  altar  any  of  tha  imagas  in  tha 
raproduction,  or  which  may  aignificantiy  changa 
tha  uaual  mathod  of  filming,  ara  chacicad  balow. 


D 


D 


D 
0 


D 


Colourad  covara/ 
Couvartura  da  coulaur 


r~n   Covara  damagad/ 


Couvartura  andommagte 

Covara  raatorad  and/or  laminatad/ 
Couvartura  raataurte  at/ou  pallicul6a 

Covar  titia  miaaing/ 

La  titra  da  couvartura  manqua 


r~1    Colourad  mapa/ 


Cartaa  giographiquaa  an  coulaur 

Colourad  init  (i.a.  othar  tuan  blua  or  black)/ 
Encra  da  coulaur  (i.a.  autra  qua  blaua  ou  noira) 


I     I   Colourad  plataa  and/or  illuatrationa/ 


D 


Planchaa  at/ou  illuatrationa  an  coulaur 

Bound  with  othar  material/ 
Rail*  avac  d'autraa  documanta 

Tight  binding  may  cauaa  ahadowa  or  diatortion 
along  interior  margin/ 

La  re  liura  aerr6e  peut  cauaar  da  I'ombre  ou  de  la 
diatortion  la  long  de  la  marge  IntArieure 

Blank  iaavaa  added  during  reatoration  may 
appear  within  tha  text.  Whenever  poaaibia,  theae 
have  been  omitted  from  filming/ 
11  ae  peut  que  certainea  pagea  blanchaa  ajouttea 
lora  d'una  reatauration  apparaiaaent  dana  la  texte, 
mala,  ioraqua  cela  Atait  poaaibia,  caa  pagea  n'ont 
pea  AtA  filmAaa. 

Additional  commanta:/ 
Commantairae  aupplAmentairee: 


L'Inatitut  a  microfilm*  la  meilleur  exemplaira 
qu'il  lui  a  6t6  poaaibia  da  ae  procurer.  Lea  ditaiia 
de  cet  exemplaira  qui  aont  paut-Atre  uniquea  du 
point  de  vue  bibliographiqua,  qui  peuvent  modifier 
une  image  reproduite,  ou  qui  peuvent  exiger  une 
modification  dana  la  m^thoda  normala  de  filmaga 
aont  indiqute  ci-daaaoua. 


{~~|  Colourad  pagea/ 


D 


Pagea  da  couleur 

Pagea  damaged/ 
Pagea  andommag^aa 

Pagea  reatorad  and/oi 

Pagea  reatauriaa  at/ou  pellicultea 

Pagea  diacoiourad,  atained  or  foxe( 
Pagea  dteoior^aa,  tachatiaa  ou  piqudaa 

Pagea  detached/ 
Pagea  d6tachiaa 

Showthroughy 
Tranaparance 

Quality  of  prir 

Quality  InAgaia  de  I'impreaaion 

Includea  aupplamentary  matarii 
Comprend  du  material  aupplAmantaira 

Only  edition  available/ 
Seule  Mition  diaponibia 


I — I  Pagea  damaged/ 

I — I  Pagea  reatorad  and/or  laminated/ 

|~n  Pagea  diacoiourad,  atained  or  foxed/ 

r~~|  Pagea  detached/ 

r~7i  Showthrough/ 

I     I  Quality  of  print  variaa/ 

I     I  Includea  aupplamentary  material/ 

I — I  Only  edition  available/ 


Pagea  wholly  or  partially  obacurad  by  errata 
aiipa,  tiaauaa,  etc.,  have  been  ref limed  to 
enaura  the  beat  poaaibia  image/ 
Lea  pagea  totalement  ou  partiellement 
obacurciaa  par  un  fauillet  d'errata,  una  pelure, 
etc.,  ont  AtA  flimtea  A  nouveau  da  fa^on  A 
obtenir  la  mailleure  image  poaaibie. 


ThIa  Item  ia  filmed  at  the  reduction  ratio  cheeked  below/ 

Ce  document  eat  film*  au  taux  da  reduction  indiqu*  ci-deaaoua. 

10X  14X  18X  22X 


y 


12X 


16X 


20X 


26X 


aox 


24X 


28X 


32X 


The  copy  filmed  here  has  been  reproduced  thanks 
to  the  generosity  of: 

Law  Society  of  Upper  Canada 
Great  Library 


L'exemplaire  fiimA  f ut  reproduit  grAce  A  la 
gAnArosltA  da: 

Law  Society  of  Upper  Canada 
Great  Library 


The  images  appearing  here  are  the  best  quality 
possible  considering  the  condition  and  legibility 
of  the  original  copy  and  in  keeping  with  the 
filming  contract  specifications. 


Las  Images  suivantes  ont  At*  reprodultes  avac  la 
plua  grand  soln,  compte  tenu  da  la  condition  at 
de  la  netteti  de  raxamplaira  fllmA,  at  •n 
conformity  avec  lea  conditions  du  contrat  da 
filmaga. 


Original  copies  in  printed  paper  covers  are  filmed 
beginning  with  the  front  cover  and  ending  on 
the  last  page  with  a  printed  or  illustrated  impres- 
sion, or  the  back  cover  when  appropriate.  All 
other  original  copies  are  filmed  beginning  on  the 
first  page  with  a  printed  or  illustrated  impres- 
sion, and  ending  on  the  last  page  with  a  printed 
or  illustrated  impression. 


Les  exemplalres  origlnaux  dont  la  couverture  en 
papier  est  ImprimAa  sont  fllmAs  en  commenpant 
par  la  premier  plat  at  en  termlnant  soit  par  la 
dernlAre  page  qui  comporta  una  empreinte 
d'impression  ou  d'illustration,  aoit  par  le  second 
plat,  salon  le  cas.  Tous  les  autres  exemplalres 
origlnaux  sont  fllmte  en  commenpant  par  la 
premlAre  page  qui  comporte  une  empreinte 
d'impression  ou  d'illustration  at  en  termlnant  par 
la  dernlAre  page  qui  comporte  une  telle 
empreinte. 


The  last  recorded  frame  on  each  microfiche 
shall  contain  the  symbol  —^-(meaning  "CON- 
TINUED"), Or  the  symbol  V  (meaning  "END"), 
whichever  applies. 

Maps,  plates,  charts,  etc.,  may  be  filmed  at 
different  reduction  ratios.  Those  too  large  to  be 
entirely  included  in  one  exposure  are  filmed 
beginning  in  the  upper  left  hand  corner,  left  to 
right  and  top  to  bottom,  as  many  frames  as 
required.  The  following  diagrams  illustrate  the 
method: 


Un  des  symboles  suivants  apparattra  sur  la 
dernlAre  image  de  cheque  microfiche,  selon  le 
cas:  le  symbols  — »>  signifie  "A  SUIVRE",  le 
symbols  ▼  signifie  "FIN". 

Les  cartes,  planches,  tableaux,  etc.,  peuvent  Atre 
filmAs  A  des  taux  de  rAduction  diffArents. 
Lorsque  le  document  est  trop  grand  pour  Atra 
reproduit  en  un  seul  cllchA,  II  est  filmA  A  partir 
de  Tangle  supAriaur  gauche,  da  gauche  A  droita. 
at  do  haut  an  bas.  an  prenant  la  nombre 
d'images  nAcessaira.  Les  diagrammes  suivants 
illustrent  la  mAthode. 


1  2  3 


1 

2 

3 

4 

5 

6 

Dt 


i50ll+ 


^0114 


AMERICAN 

CEIMIlSrAL  EEPOETS. 


A  SERIES  DESIQXED  TO  CONTAIN  THE  LATEST 
AND  MOST  IMPORTANT 

CRIMINAL   CASES 

DKTERMINEO  HI 

THE  FEDERAL  AND  STATE  COURTS  IN  THE  UNITED  STATES, 

AS  WELL  AS 

SELECTED  CASES, 

IltPORTANT  TO  AMERICAN  LaWTBRS, 

FROM  THE  ENGLISH,  IRISH,  SCOTCH  AND  CANADIAN 
LAW  REPORTS, 

WITH  /^    /^ 

NOTES  AND  KEFERENCES. 

Vol.  XI. 


EDITED  BY 

JOHN  F.  GEETING, 

liioruRKR  ON  Criminal  Law,  Habeas  Corpus  and  E^TRADinoift 
AT  the  Cbicaoo-Kbnt  Colleob  or  Law, 

AND 

HENRY  C.  GEETING, 

Lkoturbr  on  Homicide  and  Self-Dbfense,  at  thb 
Cbicaoo-Kbnt  College  of  Law. 


CHICAGO: 

CALLAGHAN  AND  COMPANY, 

1904. 


?i  i^- 


COPTRiaHT,  100^ 

BY 

CALLAGHAN  AND  COMPANY. 


STATE  JOURNAL  PRmTraO  OOMPANT. 

FBUrms  AND  STERBOTnUa^ 
MADiaON,  WU. 


PUBLISHERS*  NOTICE. 


The  publishers*  aim  in  bringing  out  this  volume  has  been 
to  give  the  bar  of  this  country  as  complete  a  collection  of  the 
many  cases  within  the  period  covered  as  possible;  and  as  some 
were  peculiarly  forceful  and  applicable  to  the  topics  discussed, 
to  reinforce  them  with  appropriate  and  ample  annotations,  so 
that  the  doctrines  involved  could  be  fully  and  clearly  pre- 
sented for  ready  consultation. 

It  will  be  observed  that  several  subjects  of  growing  impor- 
tance are  presented  with  unusual  distinctiveness,  notably, 
Alibi,  Argument  of  Counsel,  Confessions,  Criminal  Com- 
plaints, Judge  and  Jury,  etc. 

By  a  discriminating  selection  it  was  possible  to  attain  this 
purpose  of  giving  an  unusual  number  of  cases  and  of  topics 
within  the  compass  of  this  volume. 

In  having  our  design  carried  out  we  fortunately  secured 
editors  of  practical  experience  as  well  as  of  critical  knowledge. 


TABLE  OF  CASES  REPORTED. 


References  are  to  pages. 


A. 


■■■4. 


Abbott,  People  v.  (Mich.) 4 

Armstrong  v.  State  (Tenn.) ...      1 
Atkinson  t.  State  (Neb.) 136 

B. 

Bailey  v.  State  (Neb.) 660 

Barfleld  v.  State  (Texas) 384 

Bird,  People  v.  (Cal.) 442 

Bones  v.  State  (Ala.)  11 

Browning  v.  State  (Neb.) 645 

Burden  v.  State  (Ala.) 431 


C. 


Cady  V.  State   (Texas) 577 

Carbone,  People  v.  (N.  Y.) 484 

Carr  v.  State  (Ga.) 613 

Carter  v.  Commonwealth  (Va.)  303 

Carter  v.  State  (Ga.) 125 

Chavana  v.  State  (Texas) 153 

Cochran  v.  People  (111.) 506 

Commonwealth,  Carter  v.  (Va.)  303 
Commonwealth,  Cooper  v.  (Ky.)  625 
Commonwealth  v.  Farrell  (Pa.)  468 
Commonwealth      v.      Goodwin 

(Pa.)   271 

Commonwealth,     Hairston     v. 

(Va.)   G57 

Commonwealth,  Hall  v.  (Ky.) . .  581 
Commonwealth      v.      Milliken 

(Mass.)  177 

Commonwealth,  Pennington  v. 

(Ky.)  482 

Commonwealth  v.  Spicer  (Ky.)  250 
Commonwealth,      Trimble     v. 

(Va.)   320 

Commonwealth  v.  Wilson  (Pa.)  261 


Cooper  V.  Commonwealth  (Ky.)  625 

Corey,  People  v.  (N.  Y.) 487 

Cosgrove    v.    Winney    (U.    S. 

Sup.)  403 

Couch,  State  v.  (S.  C.) 346 

Crawford  v.  State  (Texas) 432 

Crowell,  State  v.  (Mo.) 74 

Cruickshank,  State  v.  (Vt.) 385 


D. 


Davis  V.  State  (Neb.) 435 

Dean  v.  State  (Fla.) 567 

Draughn  v.  State  (Miss.) 192 

Dunn  V.  People  (111.) 447 

Durnam,  State  v.  (Minn.) 179 


E. 


Eastman,  State  v.  (Kan.) 3S6 

Eldrldge  v.  State  (Miss.) 440 

Evans  v.  State  (Ga.) 695 

Ex  parte  Clem  McCarver  (Tex.)  633 


Farrell,  Commonwealth  v.  (Pa.)  468 

Fielding,  People  v.  (N.  Y.) 88 

Fitzgerald,  People  v.  (N.  Y.) . . .  700 
Flanagan  v.  State  (Ga.) . . .  525,  534 
Fong  Ah  Sing,  People  v.  (Cal.)     33 

G. 

Gallaher  v.  State  (Texas) 207 

Gee  V.  State  (Ohio) 158 

Gifford,  State  v.  (Wash.) 13 

Goering,  State  v.  (Iowa) 140 

Goodwin,     Commonwealth     v. 
(Pa.)   271 


VI 


AMERICAN  CRIMINAL  REPORTa 


References  are  to  page*. 


Green  v.  State  (Pla.) . . . 
Griffin  V.  State  (Texas). 
Guin  V.  State  (Texas) . . 


H. 

V.     Commonwealth 


Hairston 

(Va.)  

Hall  V.  Commonwealth  (Ky.).. 

Herdman  v.  State  (Neb.) 

Hlsted,  Regina  v.  (Eng.) 

Horhouse  v.  State  (Texas) 

Howard  v.  State  (Ala.) 


253  I  Moore  v.  State  (Texas) 20 

461  '  Morgan,  State  v.  (Wash.) 17 

259    Mozeo  v.  State  (Texas) 148 

Mylod  V,  State  (R.  I.) 238 

o. 

Oerter  v.  State  (Neb.) 19 


J. 

Jackman,  State  v.  (N.  H.) 

Johnson,  State  t.  (Minn.) 

Johnson,  State  v.  (Wyo.) 

Johnson,  State  v.  (Ohio) 

Johnston  v.  United  States  (C. 
C.  A.) 


657 
5S1 
298 
167 
62.1 
664 


607 
422 
598 
C03 

349 


K. 

King,  State  v.  (Iowa) . . 
Kirby  v.  United  States 

Sup.)  

Klectzen,  State  v.  (N.  D.). 
Koerner,  State  v.  (N.  D.) . , 

L. 

liaplque.  People  v.  (Cal.) . . 
Llghtfoot,  State  v.  (Iowa) . 
Llppman  v.  People  (111.) . . . 
Loveless  v.  State  (Texas) . 
Lowery  v.  People  (111.) . , . . 
Luttrell  V.  State  (Texas) . . 


(U.  S. 


Matthews  v.  State  (Texas) 

Matthews,  State  v.  (Mo.) 

McBrlde,  People  v.  (Mich.) 

McCarver,  Ex  parte  (Texas) , . . 

McEwen,  State  v.  (Ind.) 

Mendenhall,  People  v.  (Mich.) . 

Merritt  v.  State  (Texas) 

Mllliken,     Commonwealth     v. 
(Mass.)  


295 

330 
324 
570 


389 
588 
356 
679 
169 
22C 


619 
681 
391 
633 
642 
163 
518 

177 


P. 

Pennington   v.   Commonwealth 

(Ky.)  482 

People  V.  Abbott  (Mich.) 4 

People  V.  Bird  (Cal.) 442 

People  V.  Carbone  (N.  Y.) 484 

People,  Cochran  v.  (111.) 50(J 

People  V.  Corey  (N.  Y.)  487 

People,  Dunn  v.  (111.) 447 

People  V.  Fielding  (N.  Y.) 88 

People  V.  Fitzgerald  (N.  Y.) 700 

People  V.  Fong  Ah  Sing  (Cal.) . .     33 

People  V.  Lapique  (Cal.)  389 

People,  Llppman  v.  (111.) 356 

People,  Lowery  V.  (111.)  169 

People  V.  McBrlde  (Mich.)   391 

People  V.  Mendenhall  (Mich.) . .  163 

People  V.  Roberts  (Cal.)   31 

People  V.  Scott  (Cal.)  690 

People  V.  Sheldon  (N.  Y.) 545 

People  y.  Smith  (Cal.)  108 

People,  Steward  v.  (III.)   563 

People  V.  Tupper  (Cal.) 713 

Peoplev.  Weir  (Cal.)  407 

Perry  v.  Reese  (Ga.) 637 

Peyton  v.  State  (Neb.) 47 

Pickett  V.  State  (Texas) 106 

Prude,  State  v.  (Miss.) 466 

Q. 

Quintinl,  State  v.  (Miss.) 380 

B. 

Reed  v.  State  (Miss.) 651 

Reese,  Perry  v.  (Ga.) 637 

Reese,  Taylor  v.  (Ga.) 637 

Regina  v.  Hlsted  (Eng.) 167 

Regina  V.Rose  (Eng.)  275 


TABLE  OF  CASES  REPORTED. 


Vll 


References  are  to  pages. 


Rentck,  State  v.  (Oreg.) 409 

Reynolds  v.  State  (Neb.) 159 

RlggB,  State  V.  (Minn.) 198 

Roberts,  People  v.  (Cal.) 31 

Roberts  v.  Territory  (Okl.) ....  193 

Rollins,  State  v.  (La.) 667 

Rose,  Regina  v.  (Eng.) 276 

s. 

Saffold  V.  State  (Miss.) 234 

Schultz  V.  Territory  (Ariz.) ....     44 

Scott,  People  v.  (Cal.) 690 

Sheldon,  People  v.  (N.  Y.) 545 

Shoemaker  v.  Territory  (Okl.)     36 

Slavens,  State  v.  (Ohio) 15S 

Smith.  People  v.  (Cal.)  108 

Smith  V.  State  (Neb.) 145 

Smith  V.  State  (Ga.)  474 

Smith  V.  State  (Miss.)   67S 

Snover,  State  v.  (N.  J.) 655 

Spencer  v.  State  (Ga.) 674 

Spicer  V.  Commonwealth  (Ky.)  250 
State,  Armstrong  v.  (Tenn.) ...      1 

State.  Atkinson  v.  (Neb.) 13C 

State,  Bailey  v.  (Neb.) 660 

State,  Barfleld  v.  (Texas) 384 

State,  Bones  v.  (Ala.) 11 

State,  Browning  v.  (Neb.) 645 

State,  Burden  v.  (Ala.)   431 

State,  Cady  v.  (Texas) 577 

State,  Carr  v.  (Ga.) 613 

State,  Carter  v.  (Ga.)  125 

State,  Chavana  v.  (Texas)  ....  153 

State  V.  Couch  (S.  C.) 346 

State,  Crawford  v.  (Texas)  ...     432 

State  V,  Crowell  (Mo.)  74 

State  V.  Crulckshank  (Vt.)  ....  385 

State,  Davis  v.  (Neb.)  435 

State,  Dean  v.  (Fla.)   567 

State,  Draughn  v.   (Miss.)    192 

State  V.  Durnam  (Minn.) 179 

State  V.  Eastman  (Kan.) 386 

State,  Eldridge  v.  (Miss.)  440 

State,  Evans  v.  (Ga.)  695 

State,  Flanagan  v.  (Ga.)...525,  534 

State,  Gallaher  v.  (Texas) 207 

State,  Gee  v.  (Ohio)  158 

State  v.  Gifford  (Wash.) 13 


State  V.  Ooerlng  (Iowa) 140 

State,  Griffln  v.  (Wash.)  401 

State,  Green  v.  (Fla.) 253 

State,  Gain  v,  (Texas) 259 

State,  Herdman  V.  (Neb.)  298 

State,  Horhouse  v.  (Texas)  ...  623 

State,  Howard  v.  (Ala.) 664 

State  V.  Jackman  (N.  H.) 607 

State  V.  Johnson   (Minn.)    422 

State  V.  Johnson  ( Wyo.)  598 

State  V.  Johnson  (Ohio)    603 

State  V.  King  (Iowa) 295 

State  V.  Klectzen  (N.  D.) 324 

State  V.  Koerner  (N.  D.) 570 

State  V.  Lightfoot  (Iowa)    588 

State,  Loveless  v.  (Texas)  ....  679 

State,  Luttrell  v.  (Texas)  226 

Statf^'  v.  McEwen  (Ind.)  642 

State, Matthews  V.  (Texas)  ....  619 

State  V.  Matthews  (Mo.)   681 

State,  Merritt  v.  (Texas) 518 

State,  Moore  v.  (Texas) 20 

State  v.  Morgan  (Wash.) 17 

State,  Mozee  v.  (Texas)  148 

State  V.  Mylod  (R.  I.) 238 

State,  Oerter  v.  (Neb.) 19 

State,  Peyton  v.  (Neb.)  47 

State,  Pickett  v.  (Texas) 106 

State  V.  Prude  (Miss.)   466 

State  V.  Quintinl  (Miss.)  380 

State  V.  Reed  (Miss.)  651 

State  V.  Renick  (Oreg.)  409 

State,  Reynolds  v.  (Neb.)  159 

State  v.Rlggs  (Minn.)  198 

State  V.  Rollins  (La.)  667 

State,  Saffoi;.  v.  (Miss.)   234 

State  V.  Slavens  (Ohio) 158 

State.  Smith  V.  (Neb.) 145 

State,  Smith  v.  (Ga.)  474 

State,  Smith  v.  (Miss.)   678 

State  V.  Snover  (N.  J.) 655 

State,  Spencer  v.  (Ga.) 674 

State,  Sullivan  v.  (Ark.)  280 

State,  Taylor  v.  (Ga.) 3 

State  V.  Taylor  (Mo.)  51 

State,  Thompson  v.  (Ala.)   206 

State,  Thrope  v.  (Texas)   417 

State  V.  Trauger  (Iowa) 102 


Vlll 


AMERICAN  CRIMINAL  REPORTa 


ReffrencM  ore  to  page*. 


State,  Vandever  v.  (Del.) 355 

State  V.  Watson  (R.  I.) 24 

State  V.  Whldbee  (N.  C.) 416 

State  V.  Whltmore  (Mo.) 130 

State,  Womble  v.  (Texas) 438 

State,  Wood  v,  (Texas) 2.3 

Steward  v.  People  (111.) 663 

Sullivan  V.  State  (Ark.)  280 

T. 

Taylor  v.  Reese  (Ga.)  637 

Taylor  V.  State  (Ga.)   3 

Taylor,  State  v.  (Mo.) 51 

Territory,  Roberts  v.  (Okl.) ...  193 
Territory,  Schultz  V.  (Ariz.)  ..  44 
Territory,  Shoemaker  v.  (Okl.)     36 

Thompson  v.  State  (Ala.) 206 

Thorpe  v.  State  (Texas) 417 

Trauger,  State  v.  (Iowa) 102 

Trimble     v.      Commonwealth 

(Va.)  320 

Tupper  V.  People  (Cal.) 713 


u. 


United  States,  Johnston  v.  (C. 

C.  A.)  349 

United  States,  KIrby  v.  (U.  8. 

Sup.)  330 

V. 

Vandever  v.  State  (Del.)  , 365 

W. 

Watson,  State  v.  (R.  I.) 24 

Weir,  People  v.  (Cal.) 407 

Whldbee,  State  v.  (N.  C.) 416 

Whltmore,  State  v.  (Mo.) 130 

Wilson,  Commonwealth  v.  (Pa.)  261 
Wlnney,    Cosgrove    v.    (U.    S. 

Sup.)  403 

Womble  v.  State  (Texas) 438 

Wood  V.  State  (Texas) 23 


Note.— The  following  cases  appear  in  full  in  the  notes: 
Commonwealth 


Woodson 

(Ky.)  144 

Moore  v.  People  (111.) 156 

Regina  v.  Gavin  (Eng.) 168 

Smith  V.  Commonwealth  (Ky.)  232 

Schustek  Case  au.)  272 

State  V.  Murray  (Iowa)  275 

Statev.Fl8ke(R.I.) 276 


Rex  V.Jones  (Eng.)   278 

Rex  V.  Upchurch  (Eng.)   279 

Brown  v.  People  (111.) 289 

Shepherd  v.  State  (Wis.) 290 

Wright  V.  Court  (Eng.) 294 

People  V.  Kindelbergher  (Cal.)  561 

Thorley's  Case  (Eng.) 651 


TABLE  OF  CASES  CITED. 


Referuuuef  are  to  paRen. 


A. 


.  24 

.  407 

.  416 

.  130 

)  261 
I. 

.  403 

.  438 

.  23 


Aljams  V.  Foshee,  66  Am.  Dec. 

91  467 

Abram  v.  State,  36  Tex.  Cr.  R. 

4fi   152 

Ackerman   v.   City  of  Lima.   8 

Ohio  S.  &  C.  P.  Dec.  430 379 

Ackerson  v.  People,  124  III.  363  85 
Adams  v.  Adams.  51  N.  H.  388. .     27 

Adams  v.  State,  42  Ind.  373 63 

Alabaster    v.    Hamer,    70   Law 

Rep.  375 700 

Albin  V.  State,  63  Ind.  598 76 

AlRer  V.  Thompson,  1  Allen.  453  118 
Allbrltton  v.  State,  10  So.  Rep. 

426   83 

Allyn  V.  State,  21  Neb.  593 646 

Andreas  v.  Ketcham,  77  111.  377  457 
Andrews  v.  People,  75  111.  605. .  357 
Aneals  v.  People.  134  111.  401, . .     85 

Arnold  v.  Cora..  80  Ky.  300 313 

Armstrong  v.  Vandevanter,  21 

Wash.  682 249,  379 

Appleby  v.  State,  63  N.  J.  526. .  518 
Ashley  v.  Peters,  25  Wis.  621 . .  379 
Atchison  V.  Bartholow,  18  Kan. 

104    358 

Aylesworth    v.   People,    65   111, 

301   649 

Ayres  v.  State,  21  Tex.  App.  399    54 


B. 

Bagnlly    v.    Morning    Journal 
Ass'n.  38  App.   Div.    (N,  Y.) 

522   92 

Baker  v.  Com.,  20  Ky.  Law  Rep. 

1778  484 

Baker  v.  People.  105  111.  452 510 

Baker  v.  State,  24  Vroom.  45. . .  656 

Baker  v.  State,  17  Fla.  406 569 

Baldwin  v.  State,  126  Ind.  24. . .  313 

Bank  v.  .Tones,  1  Swan,  391 2 

Bank  v.  Nelson.  1  Gratt.  110 700 

Bank  of  Pittsburg  v.  Murphy, 

18  N.  Y.  Supp.  575 380 

b 


46 


6.54 
.226 


Ba  ilvs  V.  Loachemls,  8  N.  Y. 

Supp.  520  359 

Barbee   v.   State,   23   Tex.   Cr. 

App.  199  231 

Barber  v.  State.  39  Ohio  St.  660  606 

Barker  v.  Stuf^,  54  Neb.  63 645 

Barnes  v.  State,  36  Tex.  356 290 

Barney  V.  Dudley,  19  Pac.  Rep. 

550  

Barney  v.  Oyster  Bay  &  Hunt- 
ington Steamboat  Co.,  67  N. 

Y.  31  

Barth  v.  State,  39  Tex.  Cr.  R. 

38  

Bartholomew  v.  People,  104  111. 

601  73,  203 

Bartley  v.  State,  53  Neb.  310. . .  398 
Barton  v.  People,  35  111.  App. 

573   423 

Batchelder  v.  Moore,  42  Cal.  412  318 
Batsch  V.  State,  43  Neb.  501. . .  156 
Baysinger  v.  State.  77  Ala.  63. .  440 
Beard    v.    United    States,    158 

U.  S.  550 688 

Beaty  v.  State,  82  Ind.  232 391 

Beck  V.  State,  51  Neb.  106 51 

Beck  V.  State,  20  Ohio  St.  228. .  185 
Beer  Co.  v.  Massachusetts,  97 

U.  S.  25 611 

Bell  V.  State,  1  Swan,  42 375 

Bell  V.  State,  103  Ga.  12 3 

Bennett  v.  State,  17  S.  W.  Rep. 

(Tex.)  545  

Berghoff  v.  State,  25  Neb.  213. .  436 
Berry  v.  People.  1  N.  Y.  Cr.  R. 

43   

Bessette  v.  State,  101  Ind.  85. . 
Bibber  v.  Simpson.  59  Me.  181 . . 
Biggs,  Ex  parte.  64  N.  C.  202. . . 
BIgham  v.  State,  59  Miss.  529. . 

Binns  v.  State.  46  Ind.  311 

Bird  V.  State,  27  Tex.  App.  636 

Biscoe  V.  State,  67  Md.  6 287 

Black  V.  Trower,  79  Va.  127 322 

Blackwell  v.   State,   51    S.   W. 

Rep.  919 428 

Blackwell  v.  State.  67  Ga.  76. . .  698 
Blum  V.   State,  20  Tex.   Crlm. 

App.  578 419 


70 


556 

93 

246 

318 

382 

63 

23 


AMERICAN  CRIMINAL  REPORTS. 


i 


References  are  to  pages. 


1 

i  i' 


n 


BIythe  v.  Thompl<ins,  2  Abb.  Pr. 

4G8  ■• 

Board  of  Education  v.  Bakewell, 

122  111.  399 

Boggs  V,  Com.,  9  Ky.  Law  Rep. 

342  

Bomsta  v.  Johnson,   38   Minn. 

230  

Boone  v.  People,  148  111.  440. . . 
Bowen  v.  State,  108  Ind.  411... 
Bowen  v.  State,  98  Ala.  83  .... 

Boyd  V.  State,  2  Humph.  39 

Boyd  V.  rtat-,  19  Neb.  128 

Bradlaugu  v.  Queen,  3  Am. 

Crim.  Rep.  470 

Bradstreet  v.  Insurance  Co.,  3 

Sumn.  G04 

Bram  v.  United  States,  10  Am. 

Crim.  Rep.  ,'547 

Brazen  v.  State,  33  Tex.  Cr. 

Rep.  333 119. 

Bremmer  v.  Railroad  Co.,   61 

Wis.  114 

Brenham  v.  Water  Co.,  67  Tex. 

r.42  

Bridges  v.  State,  24  Miss.  154. . 
Brltton  V.  State.  77  Ala.  202... 
Brooklyn  v.  Breslln,  57  N.  Y. 

591  

Brooks  V.  Rochester  Ry.  Co., 

156  N.  Y.  244 96, 

Brow  V.  State,  103  Ind.  133  ... . 
Brown  v.  Com..  73  Pa.  St.  321. . 

Brown  v.  "eople.  91  111.  506 

Brown  V.  State,  71  Ind.  470 

Brown  V.  State.  76  Ind.  85 

Brown  V.  Swineford,  44  Wis.  232 

Bryant  v.  Com.,  20  Ky.  Law  R. 

790  

Buchalew  v.  State,  11  Tex.  Cr. 

App.  352 

Bueno  v.  State,  40  Fla.  160 

Burger  v.  State.  34  Neb.  397 

Burke's  Case.  74  Ga.  372 

Burke  v.  State,  47  Ind.  528 

Burns  v.  Barenfleld,  84  Ind.  43 
Burns  v.  State,  12  Tex.  App.  394 

Burley  v.  State,  1  Neb.  385 

Euskett,  Re,  14  L.  R.  A.  407. . . 
Butler  V.  State,  34  Ark.  480. .. . 

Butz  V.  Kerr,  123  111.  659 

Byrd  v.  State,  68  Ga.  661 

c. 


367 

358 

583 

28 
372 
646 
G46 
591 
301 

615 

27 

289 

122 

95 

634 
679 
159 

608 

497 
124 
499 
289 
287 
516 
94. 
115 

429 

419 
569 

50 
676 
318 
537 

23 
649 
700 

52 
359 
129 


Caldwell  v.  State,  34  Ga.  10 480 

Cameron,  Re,  44  Kan.  64 427 

Campbell  v.  People,  109  111.  565  52, 

59 


Campbell  v.  State,  11  Ga.  353..  499 
Carleton  v.  People,  150  111.  181     85 

Carlisle  v.  State,  77  Ala.  71 430 

Carpenter  v.  State,  43  Ind.  371  S2 
Caller  v.  Rathbonc,  1  Hill,  201  .ISO 
Carthage  v.  Frederick,  122  N.  Y. 

268  612 

Carr  v.  State,  96  Ga.  284 5  U 

Carrington  v.  Com.,  78  Ky.  83. .  fi'.l 
Carson  v.  State,  36  S.  C.  524..  253 

Casey  v.  State,  49  Neb.  40:! .')0 

Cartwright  v.  McGown,  121  111. 

388  165 

Chalk  V.  State,  35  Tex.  Crim. 

Rep.  116 464 

Chappel     V.     State,     7     Cold. 

(Tenn.)  92 04 

Charles  v.  State,  11  Ark.  408. . .  L'S? 
Charles  v.  State,  36  Fla.  601 ... .  5G9 
Chase  v.  People.  40  111.  352. .. .  ^'5 
Chatham  v.  State,  92  Ala.  47. . .  575 
Chelton  V.  State,  45  Md.  570....  52 
Chenowith  v.   Com.,  12   S.   W. 

Rep.  (Ky.)  5S5 587 

Chesapeake.  O.  &  S.  W.  R.  R. 

Co.  V.  Barlow,  86  Tenn.  537. .  555 
Chicago  V.  O'Brien,  111  111.  532  609 
Chinago,  M.  &  St.  P.  Ry.  Co.  v. 

Kellogg.  94  U.  S.  469 474 

Childs  V.  State.  97  Ala.  49 645 

Choice  V.  State,  31  Ga.  468. .. .  537 
Chrisman  v.  State.  54  Ark.  2S3  203 
Citv  of  Chicago  v.  Trotter,  26  N. 

E.  Rep.  359  637 

City  of  Holden  v.  Bimrod,  60 

Kan.  861 379 

City  of  Omaha  v.  Richards.  49 

Neb.  244 117 

City  of  St.  Louis  V.  Fltz,  53  Mo. 

582  637 

Claflin  V.  Bears,   57  How.   Pr. 

78   358 

Clancy  v.  Clancy.  66  Mich.  202  1G5 

Clem  V.  State,  42  Ind.  420 81 

Clyde  Mattox  v.  United  States, 

146  U.  S.  140 343 

Coffee  V.  State.  25  Fla.  501 2.-« 

Coffey    V.    United    States,    110 

T^  S.  436 627 

Coffin    V.    United    States.    15G 

U.  S.  432 338.346 

Cole  V.  Fall  Brook  Coal  Co.,  1 59 

N.  Y.  59 98 

Cole  V.  Rowen.  88  ATich.  219. . .  G'S 
Coleman,  In  re.  15  Blatch.  406. .  375 
Coleman  v.  People,  58  N.  Y.  5.i5  98 
ColHna  v.  New  Hampshire,  171 

U.  S.  30  610 

Colter  V.  State,  40  Tex.  Crim. 

Rep.  165 447 


TABLE  OF  CASES  CITED. 


xi 


References  are  to  pages. 


Combs   \.   Com.,   14   Ky.   Law 

Rep.  245  584 

Commander  v.  State,  60  Ala.  1  484 
Com.  V.  Adams,  114  Mass.  323, .  603 

V.  Blake,  12  Allen,  188 29 

V.Bonner,  97  Mass.  587...     50 

V.  Boyer,  7  Allen,  306 102 

V.Byrnes,  126  Mass.  248...  591 
V.  Clement,  S  Pa.  Dist.  Rep. 

705  379 

V.Cook,  13  B.  Mon.   (Ky.) 

149  518 

V.  Culver.  126  Mass.  464...   288 

V.  Davidson,  91  Ky.  162 233 

V.  Deskins,  4  Leigh,  685...  307 
V.  Donovan,  170  Mass.  228. .  191 

Y.Drew.  19  Piclt.  179 423 

V.  Dyer,  128  Mass.  70 178 

V.  Elisha,  3  Gray.  400 340 

V.  Ferrigan,  44  Pa.  St.  386. .   260 

V.  Fields,  4  Leigh.  648 659 

V.  Giles,  1  Gray,  466 346 

V.  Hanlan,  8  Phila.  423 273 

V.  Haskel,  2  Brewst.  490. . .  532 
V.  Hayden,  103  Mass.  453..   173 

V.Hunt,  4  Met,  111 518 

V.  .Jackson,  11  Bush,  679..  173 
V.  Kennard,  8  Pick.  133...   688 

V.  Knapp,  10  Pick.  477 594 

v.Lannan.  13  Allen,  563. ..     29 

V.  Libbey.  11  Met.  64 390 

V.  McCarty,   119   Mass.   354  437 

V.  Master,  4  Pa.  St.  264 532 

V.  Murray,  135  Mass.  530  . .  183 
V.Parker,  9  Mete.   (Mass.) 

265  8 

V.  Power,  7  Met.  596   688 

V.  Putnam,  1  Pick.  136 30 

V.  Railway,  113  Pa.  St.  37. .       C 

V.  Reby,  12  Pick.  496 30 

V.Rogers,  7  Mete.  (Mass.) 

500  532 

V.  Sego,  125  Mass.  210 282 

V.  Slack,  19  Pick.  304 516 

V.  Speer.  2  Va.  Cas.  67 413 

V.  Stearns,  2  Met.  343 390 

V.  Tollifer,  119  Mass.  313  . .   291 

V.  Walden.  3  Cush.  .^!)8 601 

V.  Warren,  6  Mass.  72 414 

V.  Webster.  5  Ctipb.  295 41 

V.  Williams,  110  Mass.  401  592 
V.  Williams.  ">  Ciif-b.  582  .. .  1?4 
V.  Wilson,  186  Pa.  St.  1. . . .   469 

V.Wood,  11  Gray,  85 189 

Conn  V.  ~'atf .  11  T^x.  Apn.  400  52 
Converse  v.  Wood,  5  Abb.  Pr.  84  318 
Coolev  v.   State,   46   Neb.   603  301. 

318 
Corley  v.  State,  50  Arlc.  305...  282 
Coulter  V  State.  75  Miss.  356. .  382 


Counselman  v.  Hitchcock,  142 

U.  S.  547 700 

County  of  Cook  v.  Gilbert,  140 

111.  268 359 

I  Cowles  V.  Harding,  79  N.  C.  577  380 
Coylee  v.  Com..  100  Pa.  St.  573  5  !2 
;  Grain    v.    United    States,    162 

U.  S.  625 C16 

i  Cranor  v.  State.  39  Ind.  64 37G 

Cravens  et  al.  v.  Rodgers.  101 

I      Mo.  247 034 

,  Creed  v.  People,  81  111.  565 17G 

,  Crenshaw,  Ex  parte,  80  Mo.  447  313 
I  Crlbben  v.  Schillenger,  30  Hun, 

248  380 

I  Crosby  v.  People,  137  111.  325. .   203 
1  Crow  V.  State,  33  Tex.  Cr.  Rep. 

i      264  lis 

I  Crowns  v.  Vail,  51  Hun,  204 .. .  3.S0 
I  Cnise's  Case,  8  Car.  &  P.  541  1 56 
I  Cullen  v.  Com.,  24  Gratt.  624. . .  700 
I  Curry  v.  Spencer,  61  N.  H.  624  Oil 
Czack,  Ex  parte,  Chi.  Law  Bui., 
Apr.  11,  1896 37G 

D. 

"5aily  v.  State,  24  L.  R.  A.  724  601 
Dale  V.  State,  88  Ga.  552  ...  173,  618 
Dally   V.    Overseers    of   Wood- 
bridge,  1  Zab.  491 656 

Dandridge's   Case,   2   Va.   Cas. 

408  315 

Danforth  v.  State,  75  Ga.  614..  531 
Davidson  v.   Bohlman,   37   Mo. 

App.  576 248 

Davis  V.  State,  54  Neb.  177 436 

Davis  V.  State,  36  Wis.  487 649 

Davis  V.  United  States,  160  U.  S. 

469  45 

Dawson  v.  State,  16  Ind.  429. . .  575 

Day  v.  State,  63  Ga.  667 695 

Dayharsh  v.  Railroad,  103  Mo. 

570  58 

Deery  v.  Cray,  5  WalL  807 58 

Dimmig,  Ex  parte,  74  Cal.  164  249, 

358,  367.  371 
Disney  v.  Com.,  5  S.  W.  Rep. 

360  649 

Ditto  V.  State,  30  Miss.  128. .. .  679 

Dixon  V.  State.  46  Neb.  298 20 

Donn  v.  State.  26  Ind.  495 81 

Dobb's  Case.  2  East  P.  C.  513  . .  202 

Doss'  Case,  1  Gratt.  559 561 

Dotterer  v.  Harden.  88  Ga.  145  638 
Douglass  V.  State.  3  Wis.  820  . .   646 

Doyle's  Case.  77  Ga.  513 677 

Drach  v.  Camberg.  187  111.  385  302 

Drake  V.  State.  75  Ga.  413 697 

Drake  v.  State,  68  Ala.  510 633 


f  i 


xu 


AMERICAN  CRIMINAL  REPORTa 


References  are  to  pages. 


Drumm  v.   Cessnun,   49   Pac. 

Rep.  (Kan.  Sup.)  78 

Duncan  v.  State,  49  Miss.  331.. 
Dunn  V.  People.  109  111.635...- 
Dyal  V.  State,  97  Ga.  428 

E. 


135 

GOO 
5;J2 
477 


Early  v.  State,  1  Tex.  App.  248  646 
Earp  V.  State,  1  Am.  Crlm.  Rep. 

Eden  v.  People,'  liu  Ili.  296  ... .  363 
Edmondson  v.   State,  41   Tex. 

496  381 

Edson  V.  Edson,  108  Mass.  590. .  28 
Edwards  v.  State,  80  Ga.  127 .. .  22 
Eggart  V.  State,  40  Fla.  527  ...  569 

Ehlert  v.  State.  93  Ind.  76 644 

Ellck    V.    Washington    Ty.,    1 

Wash.  Ty.  136  646 

Ellis  V.  State,  65  Miss.  47 193 

Ellsworth  V.  Potter,  90  111.  384  297 
Ewing  V.  State,  1  Tex.  Crim. 

App.  362 384 

Express  Co.  v.  Hutchins,  58  111. 

44  46 

F. 

Tanning's  Case,  66  Ga.  167 676 

Parmer  v.  State,  35  Tex.  Cr. 

Rep.  270 231 

Farrell  v.  People,  133  111.  244. . .  123 
Favors  v.   State,   20  Tex.   Cr. 

App.  156 231 

Ferguson  v.  State,  49  Ind.  33. .  124 
Pink  V.  Milwaukee.  17  Wis.  26  379 
Finlay  et  al.  v.  De  Castroverde, 

22  N.  Y.  S.  716 302 

Flack  V.  Ackney,  Breese,  144; 

B.  B.  187 370 

Flack    V.    Harrington,   Breese, 

165;  B.  B.  213 370 

Flagg  V.  People,  3  Am.  Crim. 

Rep.  70  289 

Fleming  v.  State.  136  Ind.  149  81 
Florien   v.   State,   8   Ohio  Cir. 

Dec.  171  11 

Flucker  v.  Georgia  Railroad  & 

Banking  Co.,  81  Ga.  461 654 

Follett   V.   Territory,    33   Pac. 

Rep.  869  46 

Ford  V.  State,  73  Miss.  734  ....  542 
Francis  v.  Green,  64  Ark,  523. .  544 
Franklin  v.  Adams,  101  Ga.  126  639  . 
Franklin  v.  State,  69  Ga.  523  . .  697 
Franklin  F.  Ins.  Co.  v.  Graver, 

100  Pa.  St.  266 474 


Frear  v.  Drinker.  8  Pa.  St.  521  302 
Freeman  v.  City  of  Huron,  66 

N.  W.  Rep.  928 301 

French  v.  State.  12  Ind.  670    39,  63. 

81 
Frienberg  v.  People,  174  111.  617  505 
Fulcher  v.  State,  28  Tex.  Crim. 

App.  465 464 


Gaines  v.  State,  38  Tex.  Crim. 

Rep.  202  524 

Galbreath    v.    Eichelberger,    3 

Yeates,  515 700 

Galveston   v.  Looney,   54  Tex. 

523  634 

Gandy  v.  State,  13  Neb.  445. .. .  301 
Garrity  v.  People,  10  111.  162. . .  84 
Garza,  Ex  parte,  28  Tex.  Crim. 

App.  381  634 

Gelston  v.  Hoyt,  3  Wheat.  246. .  628 
George  v.  State,  39  Miss.  570. . .  185 
Gillespie  v.  State,  8  Yerg.  507. .  185 
Gilmer  v.  Higley,  110  TT.  S.  47  58 
Gindrat  v.  People,  138  111.  103. .  359 
Glenn  &  Torrey  v.  People,  17 

III.  105   249 

Glennon  v.  Britton,  155  111.  232  359, 

368 


Goddard,    Petitioner,    16   Pick. 


304 


Goersen  v.  Com.,  99  Pa.  St.  388 
Golden  v.  State,  25  Ga.  532  476, 
Gordon  v.  Frizzell,  20  111.  291 . . 
Gossett  V.  State,  65  Ark.  389  . . 

Gould  v.. People,  89  111.  216 

Crould.  Ex  parte,  21  L.  R.  A.  751 
Graham   v.    Com.,   16   B.   Mon. 

(Ky.)  591   

Gramon  v.  Ramnnd,  1  Conn.  40 
Grant    v.    People,    4    i  arker's 

Crim.  Rep.  527 

Grant  v.  State.  97  Ga.  789 

Gravely  v.  State  38  Neb.  871.. 
Graves  v.  Colwell,  90  111.  612. . . 
Green  v.  Telfair,  11   How.  Pr. 

260  

Gregory  v.  Baugh,  2  Leigh.  655 
Gridley  v.  Bloomlngton.  88  111. 

554   

Grlel  V.  Backius.  114  Pa.  St.  187 
Grigg  V.  People.  31  Mich,  471. . 

Griggs  V.  State,  59  Ga.  738 

Grubbs  v.  Blum,  62  Tex.  4?>6. . . 
Guinn  V.  State,  39  Tex.  Crim. 

Rep.  257  

Gulliher  v.  People,  82  111.  146. . . 


609 
266 
693 
379 
123 
646 
700 

532 
379 

5.53 

540 

50 

162 

553 
561 

609 
380 
649 
538 
622 

260 
47 


TABLE  OF  CASES  CITED. 


xm 


References  are  to  pages. 


11. 


Hackett  v.  People,  54  Barb.  370  36 
Halbrook  v.  State,  34  Ark.  511  173 
Hale  V.  State,  45  N.  E.  Rep.  199  313 
Hall  V.  Manchester,  40  N.  H.  410  G08 

Hall  V.  State,  3  Cold.  125 516 

Hall  V.  United  States,  150  U.  S. 

76  120 

Hall  V.  Wolff,  61  Iowa,  559 95 

Halpern  v.  Nassau  Elec.  R.  R. 

Co.,  16  App.  Div.  90 92 

Hamilton  v.  Steamboat  Tronton, 

19  Mo.  523  380 

Hancock    v.     Elam.     3     Baxt. 

(Tenn.)  33 556 

Hardy  v.  State,  7  Mo.  608 65 

Harman  v.  Harman.  16  111.  85..  166 
Harris,  In  re,  32  Fed.  Rep.  583  370 
Harrison  v.  State,  85  Ga.  131..  156 
Hart  V.  Grant,  8  S.  D.  248  302,  379 
Hart  V.  Grant,  66  N.  W.  Rep. 

322  358 

Hart  V.  State,  14  Neb.  572 544 

Haskins   v.    Bank   of   State  of 

Ga.,  100  Ga.  216 639 

Haslip  V.  State,  10  Neb.  591...  438 
Hatch   V.   State,   8   Tex.   Crim. 

App.  416 107,  123 

Hawe  V.  State,  11  Neb.  537  ....  544 
Hawes  v.  State,  46  Neb.  149. . .  301  i 
Havves  v.  Stock  Yards  Co.,  103 

Mo.  60 58  I 

Hawkins  v.  State,  1  Zab.  630. . .  656 
Ha  /thorn    v.    People,    109    111.  j 

302   359,  362  \ 

Hawthorne   v.    State,    45    Neb.  j 

871   301  I 

Hawthorne    v.    State,    6    Tex.         | 

App.  562 379 

Hayes  v.  People,  25  N.  Y.  390  IG."^ 

166 
Haynes  v.  Trenton,  108  Mo.  133  52 
Heald  v.  Thing,  45  Me  .!92....  536 
Hebblethwaite  v.  Hopworth,  98 

111.  126    165 

Heller  v.  State,  23  Ohio  St.  582  606 
Hendricks  v.  State,  26  Tex.  Cr. 

App.  176 434,  439 

Henry  V.  State,  51  Neb.  149  ...     50 

Henry  v.  State,  1 13  Ind.  304 6 '  t 

Henry  v.  State.  35  Ohio  St.  128  440 
Herndon  v.  Com.,  48  S.  W.  Rep. 

989   587 

Herrick  v.  Gary,  83  111.  89 85 

Hester   v.    Com.,    16    Ky.    Law 

Rep.  783  583 

Hickory  v.  United  States,  160 

IT.  S.  408 478 

Hiler  V.  People,  156  111.  511   165, 173 


Hill  V.  State,  42  Neb.  503 20 

Hillman  v.  Schwenk,  68  Mich. 

293   46 

Hix  V.  1  eople,  157  111.  382 644 

Hoag  V.  People,  117  111.  35 84 

Hoback's  Case,  28  Gratt.  922..  658 

Hoge  V.  People,  117  111.  35 46 

Holloway's  Case,  5  C.  &  P.  524  202 
Holman  v.  State,  105  Ind.  513..  313 
Holmes  v.  Com.,  1  Casey,  222. .  22 
Holsey  v.  Porter,  105  Ga.  837. .  C40 
Homestead  Cases,  22  Gratt.  266  322 
Hoolier  v.  Williamson,  22  Tex. 

524   C22 

Hopps  V.  People,  31  111.  385  64,  83, 
Horstman  v.  Kaufman,  97  Pa. 

St.  147 700 

Hoskins  v.  People,  84  111.  87...  649 
Hourigan  v.  Com.,  94  Ky.  520..  234 
House  V.  State,  9  Tex.  App.  567  108 
Housh  V.  People,  75  111.  487  249,  377 
Houston  V.  State,  4  G.  Greene, 

437   595 

Howard  v.  State.  50  Ind.  190  63,  81 
Howland  v.  School  Dist.,  15  R.  I. 

184   31 

Hudgins  v.  State,  2  Ga.  173. .. .  480' 
Hughes  V.  People,  5  C......  445. .   313 

Humes  v.  Tabor,  1  R.  I.  464 379 

Hunt  V.  State,  9  Tex.  Cr.  App. 

166   536 

Hunter  v.  People,  50  111.  App. 

367   575 

Huntsman  v.  State,  12  Tex.  Cr. 

App.  619 633 

Hurst  V.  Railroad  Co.,  49  Iowa, 

76   536 

Hutchins  v.   Kimmell,   3   Mich. 

126   165 

Hutto  V.  State,  7  Tex.  App.  44. .    23, 

85 


Ir  person  v.  Town  of  Lansing,  51 
Hun,  103 554 


Jackson  V.  People,  2  Scam.  231  172 

.Tackson  v.  Smith,  5  Johns.  115  318 

.Tamison  v.  People,  145  111.  357  236 

.lansen  v.  State,  60  Wis.  577,.  3,79 
Jefferson  v.  State,  24  Tex.  App. 

535   646 

Jenkins  v.  State,  53  Ga.  33 603 

.Tesse  v.  State,  20  Ga.  50 478 

Jester  v.  State,  26  Tex.  Cr. 

App.  369 384 

Jewell  V.  Territory,  4  Okl.  53..  518 


ZIV 


AMERICAN  CRIMINAL  REPORia 


References  are  to  page* 


U     i! 


Johnson  v.  Bouton,  35  Neb.  903  301 

Johnson  v.  Com.,  82  Ky.  116 2;!6 

Johnhon  v.  Johnson,  114  111.  611  162 
Johnson  V.  People.  113  111.  99..  511, 

566 


I. 


Lambert  v.  People,  6  Abb.  N.  C. 

181  394 

Lambeth  v.  State,  23  Miss.  322  500 


Johnson  V.  People,  22  111.  318...  649  I  Lamson  v.  Royden,  160  111.  613  C9'J 


Johnson  v.  State.  21  Tex.  App. 

3G8 64,  70,  79 

Johnson  v.  State,  3  Am.  Crlm. 

Rep.  256  285 

Johnson  v.  State,  40  Tex.  Cr. 

App.  605 445 

Johnson   v.    United   States.  87 

red.  Rep.  187 366 

Jonasen  v.  Kennedy,  39  Neb.  33  147 

Jones  V.  Pitts,  98  Ga.  521 640 

Jones  V.  State,  120  Ala.  383....  693 
Jones  V.  State,  38  Tex.  Cr.  Rep. 


87 


524 


K. 


ii  i< 


Kalamazoo      Hack      Co.      v. 

Sootsma,  84  Mich.  194 654 

Keable  v.  Payne,  8  Ad.  &  Ell. 

555  339 

Keel  &  Roberts  v.  Hubert,  1 

Wash.  203 561 

Keeton  v.  Com.,  92  Ky.  522 202 

Kelly  V.  State,  33  Tex.  Cr.  Rep. 

31  561 

Kendrick  v.  Com.,  78  Va.  493..  700 
Kendrick  v.  State,  100  Ga.  300  24 
Kennedy  v.  People,  17  111.  158. .  514 
Kessey  v.  State,  3  S.  &  M.  518. .  203 
Kibs  V.  People,  81  111.  599  396,  511 
Killian  v.  Augusta  &  K.  R.  Co., 

78  Ga.  749 538 

Kinar  v.  Pierce.  1  Leach,  527. . .  fi03 
King  V.  Shepard,  1  Leach,  529. .  603 
King  V.  State,  27  Tex.  Cr.  App. 

567  439 

Kingsbury  v.   State,  39  S    W. 

Rep.  365  22 

Kitson  V.  Mayor,  etc.,  26  Mich. 

or  r 

•  >-5  327 

Klien  v.  People,  113  III.  596.".'.*."    40 

Knnpp's  Case,  10  Pick.  489 282 

Knight  &  Roffey's  Case,  2  East, 

P.  C.  510 201 

Knights  V.  State,  56  Neb"  225*"  437 
Knights  V.  State,  58  Neb.  225  135. 

V     ^  ^  542 

Koelges  v.  Guardian  Life  Ins 

Co.,  57  N.  Y.  6r,;i '    93 

Kohl  V.  Lehlback.  160  U.  S  293  185 
Kohlheimer  v.  State,  39  Miss 

548  3Q 

Kramer  v.  Com.,  87  Pa.  St.  299  266 
Krchnavy  v,  State,  43  Neb  337  14s 
Kruger  v.  state,  135  Ind.'  573  644 


Landis  v.  State,  70  Ga.  652 64 

Landringham  v.  State,  49  Ind. 

186  347 

Lane,  Ex  parte,  6  Fed.  Rep.  34  249, 

358,371 
Langdon  v.  People,  133  III.  382  35S> 
Langdon   v.   Wayne,   76   Mich. 

367  313 

Lara's  Case,  2  Leach,  647 410 

Lauback  v.  State,  12  Tex.  Cr. 

App.  583 93 

Led  better  v.  State,  21  Tex.  App. 

344   23 

Lefever  v.  State,  59  Ohio  St.  384  286 

Leiber  v.  Com.,  9  Bush,  11 36 

Leslie    v.   Com.,    19   Ky.    Law 

Rep.  102 484 

Leslie  v.  State,  47  S.  W.  Rep. 

(Tex.)  367  446 

Lindsay    v.    Commissioners,    2 

Bay,  38,  61 316 

Lipschitz    V.    People,    53    Pac. 

Rep.  1111  135 

Little  V.  State,  90  Ind.  338 313 

Livingston  v.  Lucas.  6  Ala.  147  31  <) 
Loehr  v.  Peo;,le.  132  111.  504...  511 

Long's  Case,  12  Ga.  294 677 

Long's    Case,    32    Chi.    Legal 

News,  58 377 

Lookabau.gh  v.  Cooper,  48  Pac. 

Rep.  99 C22 

Ix)ssen  V.  State,  62  Ind.  449  . ." .'  602 
Louisville,  etc.  R.  Co.  v  Folvey 

104  Ind.  409 .'  535 

Louisville,     etc.     Rv.     Co.     v 

Shires,  108  111.  617 .r,3n 

Lndden  v.  State,  31  Nob.  437..  301 
Lyle  V.  State,  31  Tex.  Cr.  Rep. 

103  204 

Lyon  V.  Evans,  1  Ark.  349 640 

Lytle  V.  State,  31  Ohio  St.  196. .  57,-, 
Lytle  V.  State,  34  Ohio  St.  196  20^ 

u. 

Macfarland's  Trial.  8  Abb    Pr. 

Rep.  (N.  S.)  59 532 

Maher  v.  People,  10  Mich.  212. .  1F;6 
Martin  v.  Com.,  93  Ky.  1 93 . . . .  48  f 
Martin  V.  State,  63  Miss.  505. ...  121 

Martin  v.  State,  25  Ga.  494 510 

Marzen  v.  People.  173  III.  56. . .  503 
Mason  v.  State,  32  Ark.  23S  .  574 
Massengill  v.  First  Nat.  Bank 

76  Ga.  341 '  q^,j 


'i 


TABLE  OF  CASES  CITED. 


XV 


References  are  to  pages. 


Mathena  v.  State,  15  Tex.  Or. 

App.  473 410 

Mathews,  Ex  parte,   49   S.  W. 

Rep.  623  620 

Matter   of   Spooner,    5   Rogers 

City  Hall  Recorder,  109 319 

Matter    of    Strong,    5    Rogers 

City  Hall  Recorder,  8 319 

Mattox   V.    United    States,   156 

U.  S.  2.37 490 

Maxwell  v.  People,  158  111.  248  571 
May,  In  re,  1  Fed.  Rep.  737 ... .  318 
May,  In  re,  1  N.  W.  Rep.  1021 ...  377 
Maynard  v.  People,  135  111.  416  378 
Mayor  v.  Mayberry,  6  Humph. 

368  612 

Mays  V.  City  of  Cincinnati,  1 

Ohio  St.  208 327 

McAfee  v.  State,  17  Tex.  App. 

131   54 

McClanahan  v.  West,  100  Mo. 

309  134 

McClure  v.  Williams.  65  111.  392  46 
McConnell  v.  Pedigo,  92  Ky.  405  654 
McCrory  v.  State,  25  So.  Rep. 

671   693 

McDonald  v.  People,  126  111.  150  110 
McDonald  v.  State,  46  Ind.  298  318 
McDowell  V.  Crawford,  11  Grat. 

405  504 

McDowell's  Ex'rs  v.  Crawford, 

11  Gratt.  405  561 

McFarland    v.    State,    18    Tex. 

App.  313  646 

McGowan  v.  St.  Louis  Steel  Co., 

109  Mo.  518 58 

MtJunkins  v.  State,  10  Ind.  140  375. 

646 
MoTntosh  V.  State,  117  Ala.  128  42S 
McKane  Case,  143  N.  Y.  455...  705 
McKeever  v.  Weyer,  11  Weekly 

Digest,  258 92 

M^T.ain  v.  State,  18  Neb.  154  51,  52 
M-T.ane  v.  State.  4  Ga.  335  ... .  133 
Mcl.ood    V.    Railway    Co.,    71 

Iowa,  138  118 

McLaughlin  v.  State,  45  Tnd.  338  348 
McMullen  v.  State,  53  Ala.  531  569 
McNair  v.  People,  89  111.  441 . ,  514 
McNnnghton's  Case,   10  CI.   & 

Fin.  200   543 

Mook  V.  State,  117  Ala,  116 429 

Morodlth  v.  People.  84  111.  479  715 
Merrill  v.   Sherburne,   1  N.  H. 

109  611 

Mc^t.  R.  Co.  V.  .Johnson,  90  Ga. 

500  3 

Mevers  v.  State,  39  Tex.  Cr.  R. 

F,00  215 

Miles  V.  State,  58  Ala.  390 297 


Miles    V.    United    States,    103 

U.  S.  304 173 

Miller  v.  Birch,  32  Tex.  210 634 

Miller  V.  Munson,  34  Wis.  579    358, 

371 
Miller  V.  People,  39  111.  457    62,  64, 

84,  85 
Miller  V.  People,  47  111.  App.  472  646 

Miller  v.  State,  2  Scam.  233 514 

Minces   v.   Shoenig,   75  N.  W. 

Rep.  711  325 

Miner  v.  People,  58  111.  59 176 

Miskimins   v.   Shaver,  8   Wyo. 

392  700 

Mitchinson  v.  Cross,  58  111.  366  175. 

176 
Mitchum  V.  State,  11  Ga.  615. . .  115 
Moncrief  v.  State,  59  Ga,  470. . .  541 
Montana  Union  Ry.  Co.  v.  Man- 

glois,  9  Mont.  419  654 

Moore,  In  re,  63  N.  C.  397 318 

Moore  v.  People,  146  111,  600...  156 
Moore   v.    State.   21    Tex.   App. 

606 95,  108 

Moore  v.  State.  20  Tex.  Crlm. 

App.  233  419 

Moore  v.   State,   26  Tex.  App. 

332  156 

Moore  v.  State,  7  Tex.  Cr.  App. 

42  384 

Moore  v.  State,  53  Neb.  831 663 

Moore  v.  State,  85  Ind.  90 593 

Moore  v.  Watts,  Breese,  18 ;   B. 

B.  42 249,  370 

Moriarty  v.  State,  46  Neb.  652  436 
Morgan,  Ex  parte,  20  Fed.  Rep. 

298  379 

Morgan  v.  State,  56  Neb,  696..  436 
Morgan   v.   State,   34  Tex.   Cr. 

App.  44  153 

Morgan  v.  State,  33  Ala.  413. . .  156 
Morrison    v.    State,    44    S.    W, 

Rep,  124  124 

Morton  v.  People,  47  111,  468     340. 

511 
Moses  V,  State,  11  Humph,  232    36 

Mount  V,  Com.,  2  Duv,  93 583 

MuH:ler  v.  Kansas,  123  U.  S.  623  610 
Mullens  v.  People,  110  111.  42,.  84 
Muller  V.  Hospital  Ass'n,  73  Mo. 

242  58 

Munson  v.  State,  4  G.  Greene, 

483  598 

Munson  v.  State,  11  S.  W.  Rep. 

114  646 

Murphey  v.  State,  43  Neb.  34, . .  146 
TMurray  v.  State.  25  Fla.  528,..   P.'r, 

Myers'  Case,  07  Ga.  76 608 

Myers  v.  People,  67  111.  503  353.  vr-^,. 

371 


t   1 


::  I 


XVI 


AMERICAN  CRIMINAL  REPORia 


References  are  to  pages. 


N. 


Nalley  v.  State,  28  Tex.  Cr.  App. 


387 


2^.1 


Neal  V.  Gordon,  60  Ga.  112  358,  o71 
Neale  v.  Cunningham,  1  Cranch, 

C.  C.  7(5  ^^^ 

Neill  V.  Produce  Co.,  38  W.  Va. 

228  5^* 


24G 

36  j 

205  i 

630 

289 


Nelson  v.  Harrington.  72  Wis. 

591  ••• 

Nelson  v.  State,  7  Humph.  542 
Nelson  v.  State,  26  S.  W.  Rep. 

623  •  • 

Newcomb's   Ex'r  v.   Newcomb, 

13  Bush,  544 

Newman  v.  State,  1  Am.  Crim. 

Rep.  173  

Newton  v.  State,  3  Tex.  App. 

245  603 

Newton  V.'  State,  21  Fla.  53. . . .  94 
Nickolson  V.  State,  38  Md.  140  284, 

2S7 
Noland  v.  State.  19  Ohio,  131. .     20 

Noles  V.  State,  24  Ala.  672 667 

Northcot  V.  State.  43  Ala.  330..  603 

0. 

O'Brien  v.  People,  17  Colo.  561  714 
O'Chander  v.  State,  46  Neb.  10  301 
Ogletree  v.  State,  28  Ala.  693. .  156 
O'Herrin  v.  State,  14  Ind.  420. .  575 
O'Neale  v.  Com.,  17  Gratt.  583  173 
Old  Colony  Ry.  Co.  v.  Tripp, 

147  Mass.  35 654 

Otmer  v.  People,  76  111.  149. .. .  47 
Overton  v.  State,  43  Tex.  616..  177 
Owen  V.  State,  78  Ala.  425 285 


518 


People  V.  Bennett.  49  N.  Y.  137  704 
V.Brooks,  131  N.Y.  321....     93 

V  Brown,  34  Mich.  339 165 

V.  Button,  106  Cal.  628 6:>2 

V.  Cannon,  139  N.  Y.  32  359,  368 
V.  Carbone.  156  N.  Y.  413..   500 

V  Casey,  65  Cal.  261 594 

V.  Colin,  149  111.  486 359 

V.Cooper,  83  111.  585 302 

v.Corbett,  28  Cal.  328 64(i 

V.Corey,  157  N.Y.  332 96 

V.  Cotteral,  18  .Tohns.  115..  6i»3 
V.  Cramer,  47  N.  Y.  S.  1039  379 
V.  Diedrich,  141  111.  665....  319 

v.Dole.  122  Cal.  486 447 

v.Dor  hy,  156N.  Y.  237....  713 

v.  EviP   s,  72  Mich.  385 3i;9 

V.  Fe\v,  2  Johns.  290 318 

V.Fitzgerald,  20  App.  Div. 

(N.  Y.)  139 702 

V.  Fong  Ah  Sing.  64  Cal.  253  39. 

62 
V.Fredericks,   106  Cal.   554  691 

V.  Garbutt.  17  Mich.  9 595 

V.  Gates,  15  Wond.  159 133 

V.  Getchell,  6  Mich.  496  ... .  427 

V.  Glenn.  10  Cal.  32 499 

V.  Gonzales,  35  N.  Y.  49 98 

V.Goodwin.  18  .Johns.  187..  552 

V.  Green.  13  Wend.  55 553 

V.  Groenwall,  115  N.  Y.  520  92 
V.Harris,  29  Cal.  678.  202,  204 
V.  Hazelwood.  116  111.  319..  359 

V.  Heckor.  109  Cnl.  451 602 

V.  Heffron,   53   Mich.   527     ?,:>3, 


Packard's  Case.  4  Ores.  189 
Palmer  v.  State,  34  La.  Ann. 

1061  288 

Parker  v.  State.  136  Ind.  284. . .  81 
Parkinson  v.  Peorle.  135  111,  401  646 
Parsons  v.  State.  81  Ala.  577. ..  532 

Partlow's  Case.  90  Mo.  608 693 

Pate  V.  State.  10  So.  Rep.  665. .     82 

Peers  v.  Carter,  4  Litt.  269 358 

Pellum  v.  State.  89  Ala.  32 S3 

People  v  Ah  Sam.  47  Cal.  656. .  441 

V.Allen,  5  Denio.  76 516 

v.  Bavberi.  149  N.  Y.  256. . .  502 
v.  Barrie,  1  Am.  Crim.  Rep. 

178  286 

V.  Becker,  20  N.  Y.  354  358,  371 


■r.27 


367, 


■1 
06 


l: 


u. 


1^,61 
532 
499 


V.  Hill,  37  Art'.  D 

V.  ,Tnnes,  12  Ck\. 

V.  Kindolberser        '"     •' 

367 

V.  Klien.  1  Edni.  :'r/S 

V.  Kroft.  91  Hun.   i,4.., 

V.  Kuhler,  93  Mich,  626 3(;9 

V.  Lattimnre,  86  Cal,  430. . .     :'>t 
V.  Leonard,  143  N.  Y,  360. . .   50' 

V.  Levine.  85  Cal.  41   54 

V.  Lillpy.  43  Mich,  54 157 

V.  Loomis,  106  Mich,  250. . .  165 

V.  Ma.1ors,  65  Cal,  138 110 

V.  Mead,  50  Mich,  228 303 

V.  McCord.  76  Mich.  ^OO, . 
V.  McCov.  45  How.  Pr.  216. 
V.Mitchell.  62  Cal.  411  ... 

V.Moody,  69  Cal.  184 649 

V.  Murray.  86  Cal,  34 594 

V.  Novak,  24  N,  Y.  St.  Rep. 

?74  

V.Nelson.  85  Cal.  421 

V.  Ol'-ntt,  2  Johns.  Cases, 

301  


106 
700 
114 


379 
45 

552 


TABLE  OF  CASES  CITEU 


XVll 


References  are  to  pagea 


People  T.  Olmstead,  30  Mich.  431     5 

v.Olsen,  6  Utah,  284 692 

V.  Owen,  148  N.  Y.  648 704 

V.Parker.  114  Mich.  442...  446 

V.  Payne,  8  Cal.  341 688 

V.  Roberts,  19  Mich.  401  .. .  155 

V.  Ruclter,  5  Colo.  466 316 

V.  Scott,  6  Mich.  296 5,  166 

V.  Seaman,  107  Mich.  340  . ,  10 

V.  Seeley,  117  Mich.  263. .. .  399 

V.  Smalling,  94  Cal.  112....  266 

V.  Squires,  99  Cal.  32 183 

V.  State,  62  Ala.  237 62 

V.Stewart,  75  Mich.  21....  289 

V.  Stone.  9  Wend.  18 410 

V.Thomas,  3  Hill   (N.  Y.), 

169  427 

V.  Tarm  Poi,  24  Pac.  Rep. 

ggg    ^g 

v.Van  Santrso'Mo.'bV,'??  500 
V.  Walker,  38  Mich.  156  202,  674 
V.  Ward,  1  Wheeler  Cr.  Cas. 

469   553 

V.  Webster,  111  Cal.  381  ...  694 
V.  Westlake,  124  Cal.  452..  398 
V.  Whiteman,  114  Cal.  338. .  443 
v.Wolcott,  51  Mich.  612...  700 
V.  Wong  Ah  Foo,  09  Cal.  182  54 
V.  Wong  Ah  Ngow,  54  Cal. 

151   478 

V.  Wright,  70  111.  388 362 

People  ex  rel.  O'Niell  v.  Shields, 

30  Chi.  Legal  News,  340 375 

People  ex  rel.  Schusted,  29  Chi. 

Legal  News,  33 372 

People  ex  rel.  Smith  v.  Brown, 

16  Chi.  Legal  News,  392 354 

Percival  v.  State,  45  Neb.  741 . .  30] 
Perham's  Case,  4  Oreg.  188. .. .  518 
Peter  v.  State.  4  Sm.  &  M.  31 . .  290 
Pettibone  v.  United  States,  148 

U.  S.  197 516 

Phoebe  v.  Jay.  1  111.  207 249 

Phoenix   Ins.   Co.   v.   Moog,   81 

Ala.  335   557 

Phillips  V.  Denver.  19  Colo.  197  608 

Physioc  V.  Rhea.  75  Oa.  466 555 

Pierce  v.   People,   38   Tex.  Cr. 

App.  604  446 

Pierce  v.  Pierce.  38  Mich.  412  . .  554 
Pierce  V.  State.  13  N.  H.  536...  610 
Pierson  v.  People.  79  N.  Y.  424  437 
Pinchard  v.  State,  13  Tex.  App. 

478  484 

Pigman  v.  State.  4  Ohio,  555  .. .  203 
Pigman  v.  State.  14  Ohio,  465. .  575 
Pittman,  In  re,  1  Curt.  (U.  S.) 

186  318 

Pitts  v.  Hall,  60  Ga.  389 638 

Pitts  V.  State.  43  Miss.  472 292 


Pittsburg,  C.  &  St.  L.  Ry.  Co.  v. 

State,  49  Ohio  St.  189 329 

Pollard  V.  State,  53  Miss.  410. .     64 

Polk  V.  State,  36  Ark.  124 536 

Pope  et  al.  v.  Dodson,  68  111.  360  46, 

47 

Port  V.  Port,  70  111.  484 165 

Porter  v.  Low,  16  How.  Pr.  549  318 

Powell  V.  State.  101  Ga.  9 479 

Powell  V.   State,  12  Tex.  App. 

239  23 

Powers  V.  Leach,  26  Vt;  270 53 

Prichard  v.  People,  149  111.  50  614 

« 

Q. 

Queen  v.  Hazelton,  L.  R.  2 
Crown  Gas.  134 423 

Queen  v.  Thompson,  9  Am. 
Crim.  Rep.  269 277,  289 


Railroad    Co.    v.    O'Brien,    119 

U.  S.  99 58 

Railroad  Co.  v.  State,  60  N.  H. 

87  609 

Railway  Co.  v.  Jacksonville,  67 

111.  37   358 

Ramsey  v.  State,  36  Tex.  Crim. 

Rep.  392  680 

Randle   v.    State,   34   Tex.   Cr. 

Rep.  43 215 

Randle  v.  State,  12  Tex.  App. 

250   23 

Rank  v.  People.  80  111.  App.  40  515 
Rawson  v.  Curtiss.  19  111.  456. .  451 

Ray  v.  People,  6  Colo.  231 649 

Ray  v.  State,  13  Neb.  55 22 

Rea  V.  Harrington,  58  Vt.  181. .     94 

Real  v.  People,  42  N.  Y.  270 56 

Reeves,  .Jr.,  v.  Herr,  59  111.  79  176 
Regina  v.  Attwood,  5  Cox  C.  C. 

322   257 

V.  Baldry,  12  Eng.  Law  & 

Eq.  590 282 

V.  Baldry,    19    L.    T.    Rep. 

(O.  S.)  146 276 

V.  Baldry,  2  Dennison  C.  C. 

430  2-^Ct 

V.  Boyes.  1  Best  &  S.  311. .  190 
V.  Brackenbury,  17   Cox  C. 

C.  628 168 

V.  Falkner.  3  Cox  C.  C.  550  603 
V.  Gavin,  15  Cox  C.  C.  6.')6. .  168 
V.Grantham,  11  Mod.  222..  414 
V.  Hassett,  8  Cox  C.  C.  511  700 
V.  Jarvis,  17  L.  T.  Rep.  178  277 


XVIU 


AMERICAN  CRIMINAL  REPORT& 


References  ore  to  pages. 


»       I 


^;    i-^ 


Regina  v.  Jennison,  9  Cox  C.  C. 

J58    414 

V.  Jones,  9' Car.  &  P.  258...  156 
V.  McCarty,  6  Mod.  301  ... .  411 

V.  Moore,  16  Jur.  622 283 

V  Norman,  IC.  &  M.  501..  390 
V.  Pemberton,  12  Cox  C.  C. 

607  603 

V.  Rvan,  2  Mood.  &  R.  213  150 
V.  Simmonsto,  1  Car.  &  Kir. 

164  173 

V.Thompson,  17  Cox  C.  C. 

641  285 

V.  Thompson,  69  L.  T.  Rep. 

24  277 

V.  Warmingham,  2  Den.  447  285 
Republic  V.  Gibbs,  3  Yeates,  429  700 
iCex  V.  Baldwin,  3  Camp.  265. . .  341 

V.  Bower,  1  Cowp.  323 414 

V.  Derrlngton,  2  C.  &  P.  418  274 
V.  DufBn,  Russ.  &  Ry.  364. .  156 
V.  Duchess  of  Kingston,  20 

How.  St.  Tr.  355,  538..  628 

V.  Cover,  Sayer,  206 411 

V.  Hanson,  Sayer,  229 411 

v.Hardwick,  Phillips'  Evi- 
dence, 105 279 

V.  Hodgson,  3  Car.  &  P.  422  390 
V.Holt,  7  Car.  &  P.  518....  156 
V.  Innabitants  of  Harborne, 

2  Adol.  &E1.  540 162 

v.Jervis,  6  C.  &  P.  156. .. .  345 
V.  Jones,  Russ.  &  Ryan,  152  278 

V.  .Tones,  1  Leach,  147 410 

V.  Ratcllffe,  1  Lew.  C.  C.  112  340 
V.  Row,  Russ.  &  Ryan,  153  279 

V.Sims.  12  Mod.  511 318 

V.  Smith,  Leach  C.  C.  288  ^41 
V.  Thomas,  1  East  P.  C.  417  156 
V.  Turner,  1  Moody's  Crown 

Cases,  347 338 

V.  Upchurch,  1  Moody  C.  C. 

4Q5  273 

V.  Williams,  7  C.  &  P.  354 ." .'  427 
Rice  v.  Rice,  47  N.  J.  L.  559. . .  700 
Richards  v.  Borowsky,  39  Neb. 

774  147 

Riker  v.  Hooper,  35  Vt.  457 159 

Rix  V.  State,  33  Tex.  Cr.  Rep. 

353  260 

Robbing  v.  State,  8  Ohio  St.  131  499 

Roberts  v.  Neal,  62  Ga.  163 639 

Roberts  v.  People,  19  Mich.  401  202, 

20i 

Robe:*ts  V.  State,  3  Ga.  310 524 

Robinson,  Ex  parte,  19  Wall. 

505 311 

Robinson    v.    Richardson,    13 

Gray,  454  365 

Rogers  v.  State,  33  Ind.  543 575 


Roe  V.  State,  19  Tex.  App.  89. .  646 
Rollins  V.  State,  22  Tex.  Crim. 

App.  548 434,439 

Roode  V.  State,  5  Neb.  174 438 

Rosen    v.    United    States,    161 

U.  S.  25,  29 346 

Ross  v.  De  Los,  45  111.  447 302 

Ross  v.  Gill  and  wife,  1  Wash. 

88  561 

Roush  v.  State,  34  Neb.  325. .. .  436 
Rudolph  V.  Landwerieu,  92  Ind. 

34 96 

Rufer  V.  State,  25  Ohio  St.  464  286 

s. 

Samuel  v.  People.  164  111.  379. .  699 
Sarah   Way's   Case,    41    Mich. 

299 249,  377 

Sater  /.  State,  56  Ind.  378 76 

SauuGers  v.  Melhuish,  6  Mod. 

73  318 

Sawyer  v.  State,  35  Ind.  86 532 

Saylor  v.    Com.,   17    Ky.   Law 

Rep.  103  484 

Schenck,  Ex  parte,  65  N.  C.  353  313 
School  Town  v.  Shaw,  100  Ind. 

268  95 

Schustek    Case,    Chi.    Law    J., 

Sept.,  1896 372 

Schwabacher  v.  People,  165  111. 

618  203 

Scott  V.  People.  141  111.  195 510 

Searcy  v.  State,  28  Tex.  App. 

513  225 

Senior,  Ex  parte,  32  L,  R.  A. 

123  700 

Serpertineo  v.   State,    1   How. 

(Miss.)   256 2911 

Sewoll  V.  State.  76  Ga.  836 439 

Shannon  v.  State,  34  Tex.  Cr. 

Rep.  5  220 

Shannon  v.  State,  109  Ind.  407  439 
Shaw    V.    Ashford,    68    N.    W. 

Rep.  281 358,  379 

Shaw  v.  St  ite,  34  Tex.  Cr.  Rep. 

435  46G 

Shortridge,  In  re,  99  Cal.  .^26..  313 
Shriedley  v.  State,  23  Ohio  St. 

130  591 

Slmesslerv.  State,  19  Tex.  App. 

472  624 

Simms  v.  State,  32  Tex.  Crim. 

App.  277 439 

Simon  V.  State.  5  Pla.  285 256 

Simons  v.  People.  150  111.  66. . .  73 
Simpson  v.   Waldby,   63   Mich. 

439  393 

Sims  V.  State,  38  Tex.  Cr.  Rpp. 

637  689 


TABLE  OF  CASES  CITED. 


Six 


Ite^jrenceB  are  to  pages. 


Slater  v.  Mead,  53  How.  Pr.  59  554 

Slnsser  v.  State,  71  Ind.  280 376 

Smith,  Ex  parte.  3  McLean,  121  375 

Smith,  Ex  parte,  IC  111.  347 379 

Smith  V.  Com.,  1  Duv.  (Ky.)  224  532 

Smith  V.  Com..  95  Ky.  322 232 

Smith  V.  Lane,  24  Hun,  G32 249 

Smith  V.  Shoemaker,    17    Wall. 

V,-\0   5S 

Smith  V.  State,  63  Ga.  170 478 

Smith  V.  State.  64  Ga.  605 126 

Smyth  V.  Amed,  169  U.  S.  466..  610 
Snider  v.  State,  56  Neb.  309...  543 
Somorvllle  v.  State,  6  Tex.  App. 

4:!8  23 

South  Bell  Tel.  Co.  v.  Jordan, 

87  Ga.  69 538 

Sparf  et  al.  v.  United   States, 

156  U.  S.  51 595 

Sparf  V.  United  States,  10  Am. 

Crim.  Rep.  168 289 

Spearman  v,  Wilson,  44  Ga.  47.3  556 
Speiden  v.  State,  30  Am.  Rep. 

126   197 

Spencer,  In  re,  4  MacA.  433 318 

Spencer  v.  Kennard,  12  Tex.  180  301 
Sperry  v.  Com.,  9  Leigh.  261. ..   646 

Sqniro  v.  State,  46  Ind.  459 173 

St.  Paul  V.  Colter.  12  Minn.  41  608 

Stafford  V.  Low,  20  111.  1.')2 379 

Starin  v.  People.  45  N.  Y.  333. .     22 

State  V.  Ae;ee,  68  Mo.  264 646 

V.  Anderson,    47    Iowa.    142  431 

V.  Appleby.  63  N.  J.  526 429 

V.  n..  Dev.  &  Bat.  130 603 

V.  Bair.  92  Iowa,  28 598 

V.  Balier,  57  Kan.  541 649 

V.  Baker  et  al  .  23  Oreg.  441  118 

V.  Banlss.  73  Mo.  502 66 

V.  Barnes.  59  Mo.  154 646 

V.  narrow,  31  La.  Ann.  691  162 

V.  Boasloy.  84  Iowa.  83 88 

V.Bell.  29  Iowa.  318  ..  203.  575 

V.  Berlin.  42  Mo.  572   377 

V.  Beuorman,   53  Pac.  Rep. 

S71    714 

V.  Blunt.  59  Iowa,  469 54 

V.  Bracl<en.  152  Ind.  565  ...  446 

V.  Brady.  .'iO  N.  Y.  182 . .   378 

V.  BrnnstPtter.    65   Mo.   149     66 

V.  Brinldpy,  146  Mo.  37 193 

V.  Brodoriok.  i^9  Mo.  318...     76 

V.  Brooks.  92  Mo.  542 66 

V.Brown.  104  Mo.  365 205 

V.  Brown,  38  Kan.  390 387 

V.  Bruin.  34  Mo.  540 , .     67 

V.  Buswell.  40  Neb.  158 247 

V.  Butts.  107  Iowa,  653 24 

V.  Bybee,  17  Kan.  462 555 

V.  Carter,  39  Me.  262 379 


State  V.  Carter,  8  Wash.  272. .. .  117 
V.  Chee  Gong,  19  Pac.  Rep. 

607 38 

V.  Child.  40  Kan.  482  ....38.  51 

V.  Chlnn,  142  Mo.  507 446 

V.  Christian.    30    La.    Ann. 

367   646 

V.  Clark,  102  Iowa,  685 591 

V.Cohen,  108  Iowa,  208 135 

V.  Costello,  62  Conn.  128...  517 

V.  Cox,  67  Mo.  392 58 

V.  Cox,  65  Mo.  29 297 

V.  Crank,  75  Mo.  406 67 

V.Crawford,  34  Mo.  200...     54 

V.Crook,  16  Utah,  212 10 

V.  Cross,  68  Iowa.  180 54 

V.  Dale,  3  Wis.  795 379 

V.Dan  Good,  77  Tenn.  250  375 
V.Davie,  62  Wis.  305..  369,  382 

V.  Davis,  80  N.  C.  412 185 

V.  Day,   4  Am.   Crim.   Rep. 

104  289 

V.  Delyon,  1  Bay,  353 414 

V.  De  Masse,  98  Mo.  342  ...  53 
V.Dickinson,  41  Wis.  299..  499 
V.  Donavan,  61  Iowa,  369..  596 
V.Douglass,  96  Iowa,  308..  593 

V.  Douglass.  81  Mo.  234 53 

V.  Draper,  65  Mo.  335 36 

V.  Drury,  13  R.  I.  540 31 

V.Dubois,  54  Iowa,  363 292 

V.  Duncan.  7  Wash.  336 14 

V.Dunn,  18  Mo.  419 54 

V.  Earl,  41  Ind.  464 318 

V.  Earp,  41  Tex.  487 23 

V.  Edgerton.  12  R.  I.  108. . .  29 
V.  Edwards,  109  Mo.  315    52,  67 

V.  Elliot,  93  Mo.  151   54 

V.  Enslow,  10  Iowa,  115 603 

V.  Epps,  27  La.  Ann.  227...  646 

V.  Evans.  124  Mo.  410 686 

V.  Express  Co.,  60  N.  H.  219  609 

V.  Felter.  25  Iowa,  67 532 

V.  Field  &  Weber.  4  Tenn. 

140  290 

V.  Fisk,  18  R.  I.  416 249 

V.  Fiske.  20  R.  I.  416 375 

V.Ford.  30  La.  Ann.  311 646 

V.  Fraker,  148  Mo.  143 429 

V.  Frew.  24  W.  Va.  41 6 313 

V.Gabriel,  88  Mo.  631 516 

V.  Oallowav.  5  Cold.  326...  313 
V.  Gallup.  1  Kan.  App.  618  318 
V.Gardner,  10  La.  Ann.  25  667, 

672 
v.Gifford.  19  Wash.  464...     18 

V.  Gilmore.  95  Mo.  554 693 

V.  Gleason.  32  Kan.  345 353 

V.  Gong,  16  Oreg.  534 77,  80 

V.  Good,  46  Mo.  App.  515..  119 


XX 


AMKRICAN  CRIMINAL  REPORTS. 


Refcrcncw  are  to  pftni'S. 


State 

V, 
V, 
V 
V 
V 
V 
V. 
V, 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


V.  Oould.  40  Iowa,  372....  592 

Gove,  34  N.  H.  51  (i 591 

G.ant,  22  Me.  171  2GG 

,  Grant.  79  Mo.  1.16 59 

Greenwade.  72  Mo.  298  53.  58 

.  Guild,  5  Halst.  1G3 290 

.  Hnlnes.  :,l  La.  Ann.  751  WA 
Hamilton.  57  Iowa.  596..  40 
Hardin.  46  Iowa,  623  64.  87 
Harris,  11  Iowa.  414.  .591,  598 
Hatcher,  29  Oreg.  :Jlt9  ..111 

Hazard,  2  R.  I.  474 345 

Helm.  92  Iowa,  540 122 

Henson.  106  Mo.  66.. 

Hill,  79  N.  C.  6.57 

Howard,  102  .Mo.  142. 
Howard,  118  Mo.  127....     .^9 

Howell.  100  Mo.  628 62 

Hul)bell,  55  Mo.  App.  262  616 

Huff.  76  Iowa,  200 597 

Hughes.  1  Ala.  655 645 

Hunter.  43  La.  Ann.  156  646 
Hurst.  11  W.  Va.  54    504,  561 

Hussey,  60  Me.  410 591 

Hussey,  44  N.  C.  123....   177 

Inness.  53  Me.  536 30 

Ives,  13  Ired.  338 344 


66 

518 

r,'> 


Is.i 

592 

53 

52 


Jackson,  27  Kan.  581 
.Jackson,  .34  N.  C.  .329.... 

Jackron,  99  Mo.  63 

.la.rkson,  95  Mo.  653 

Jicobs,  5  Jones  (50 

N.  C),  259 699 

.laynes,  78  N.C.  504....  64,  67 
JiMinings,  81  Mo.  185  53,  54, 

62 

.Johnson,  93  Mo.  73 133 

Johnson,  40  Conn.  136. . .  532 
Johnson,  91  Mo.  448... 53.  54 

.Jones,  50  N.  H.  369 532 

Jones,  13  Iowa,  269 297 

Reach,  40  Vt.  113 518 

Keele,  105  Mo.  42 53 

Kelly,  25  La.  Ann.  382  667. 

671 

Kelly,  73  Mo.  608 r,G 

Kendall,  73  Iowa.  255...  6.'9 
Kilgore.  70  Mo.  558  ....     66 

King.  78  Mo.  5.51 .53 

King,  64  Mo.  595 119 

Kline,  54  Iowa,  183 54,  87 

Knight,  3  S.  D.  509 313 

Leabo,  89  Mo.  258 53 

Leaho,  84  Mo.  168 58 

Lantz,  23  Kan.  728 118 

Lawler.  130  Mo.  366 76 

Lewis.  8  Mo.  110 53 

Lewis.  69  Mo.  92 62.  67 

Linde,  54  Iowa,  139. .  591,  598 


Maloney,  12  R.  I.  251. 


31 


State 

V 
V, 
V. 
V. 
V. 
V. 
V. 
V. 

V. 
V. 
V. 
V. 
V. 

V, 

V. 
V. 

»» 

V. 
V. 

V. 
V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 

V. 

V. 

V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 
V. 


V.  Massey,  86  N.  C.  658. . .  659 

.  MathcH.  90  Mo.  571 500 

Mathews,  20  Mo.  55 66 

McCarthy.  4  R.  I.  84 30 

McCoy,  111  Mo.  517 53,  54 

Mcnaniol,  41  Tex.  229...     22 

McGraw.  74  Mo.  573 5.3 

McKlnsey,  102  Mo.  630..  64 
McMahon,    55    Atl.    Rep. 

591   613 

Miller,  100  Mo.  606 56 

Millmeirer.  I02  Iowa,  692  593 

.Minis,  26  Minn.  683 182 

Mims,  43  La.  Ann.  532...   2^0 

Miner,  l')7  Iowa.  656 56!) 

Mitchel,  5  Ired.  350 6i>.I 

.Montgomery.  63  Mo.  296  646 
Moore.  101  Mo.  319...  53.  .59 

Morrill,  16  Ark.  390 310 

Moxley,  102  Mo.  374  66.  103 
Murray,    41    Iowa,    580  249. 

37.-. 

Newby.  64  N.  C.  23 5!i2 

Newport,  4  Harr.   (Del.) 

567  341 

Nine.  105  Iowa.  131 428 

North,  95  Mo.  616 72 

Northrup.  48  Iowa,  583 . .     87 

Nowell,  .58  N.  H.  314 700 

Palmer,  88  Mo.  .568 66 

Parker,  43  N.  H.  83 518 

Patrick,  107  Mo.  147 66 

Pennoyer,  65  N.  H.  113..  610 
Phllhrlck,  31  Me.  435  ...  518 
Pierce,  7  Ala.  728...  592,  603 

Pike,  49  N.  H.  441 532 

Porter,  74  Iowa,  623 5:i3 

Potter.  28  Iowa,  554 297 

Quarrel,  2  Ray,  150 185 

Railroad    Co.,    63    Iowa, 

508   591 

Rapp.  142  Mo.  443..  685,  693 
Raymond,  53  N.  J.  Law, 

268   437 

Reed,  62  Iowa.  40 54.  87 

Reed.  17  N.  W.  Rep.  150     40 

Red.  53  Iowa,  70 ,'54.  87 

Rovells,  31  La.  Ann.  387  646 

Rhodes,  111  N.  C.  647 136 

Rider.  95  Mo.  485 53 

Roberts,  12  N.  C.  259 289 

Rockett.  87  Mo.  668  53,  54,  67 

Roe.  12  Vt.  93 134 

Root.  5  N.  n.  487 318 

Rugan.  68  Mo.  214 .^3 

Sargent,  71  Minn.  28 190 

Saunders,  53  Mo.  262    53,  •'".1 

Schingen,  20  Wis.  79 575 

Schuerman,  70  Mo.  App. 

518  U 


TABLE  OF  CASES  CITED. 


XXI 


Referercoii  are  to  paK<^- 


. .  r>59 
.  .  500 
. .     «iG 

. .    no 

63,  54 
..     22 

.     53 

.  64 
p. 

.   (513 

.    r.o 

2  5;»3 
.  182 
.   2>0 

.  f)(»;i 

in.  59 

.   310 

:.  \o.rj 
'  2»n. 

275 

.   5!»2 


State  V.  Shepard  et  al    88  Wis. 

185   290 

V.  Shroyer,  104  Mo.  4 18.. 53,  54 
V.Sidney,  74  Mo.  39....  C6,  72 
V.  Simmons  Harriware  Co., 

15  L.  R.  A.  676 700 

V.  Skelton,  2  Jones  (N.  C), 

360  C4G 

V.Sloan,  22  Mont.  293 694 

▼.Sloan,  47  Mo.  612 686 

V.  Smith,  108  Iowa,  440 24 

V.  Smith,  75  N.  C.  306 94 

V,  Smith,  21  Neb.  552 379 

V.  S.nith,  21  Tex.  Cr.  App. 

277  464 

V.  Snow,  3  R.  I.  64 .242 

V.  Soragan,  40  Vt.  450 386 

V.  Spencer,  38  Me.  30 379 

V.  Staley,  45  W.  Va.  792  .. .  502 

V.  Staple,  37  Me.  228 379 

V.  Stevens,  30  Iowa,  391  ...  297 

V.  Stewart,  52  Iowa,  284 54 

V.  Stinaon,  124  Mo.  447 76 

V.  Stonum,  62  Mo.  597 66 

V.  Stowell,  60  Iowa,  535 596 

V.  Sutcllffe,  4  Strobh.  Law, 

372   133 

V.  Sutton.  70  Iowa,  268 54 

V.  Sweetland.  3  S.  D.  503. . .  318 
V,  Swepson,  79  N.  C.  632. . .  631 
V.  Tatro,  3  Am.  Crlm.  Rep. 

165  289 

V.  Taylor,  28  Mo.  240 53 

V.  Tucker,  96  Iowa,  276 593 

V.  rilrlch.  110  Mo.  350 124 

V.  I'nderwood.  75  Mo.  230. .     58 

V.  Vanhook,  88  Mo.  105 646 

V.  VIcrs.  82  Iowa,  397 144 

V.  Vincent.  24  Iowa,  570 86 

v.Vogel,  22  Wis.  449 185 

V.  Waterman.  1  Nev.  543  41,  63 

V.  Weber,  22  Mo.  321 649 

V.  Welch.  21  Minn.  26. . .  22,  574 

V.  Welch.  26  Me.  30 177 

V.  Wentworth,  37  N.  H.  218  266 

V.  Whalen,  98  Mo.  222 54 

V.  Wheeler,  108  Mo.  658. ...  54 
V.  Whpeler,  19  Minn.  98...  440 
V.  Wblttaker,  85  N.  C.  566. .  379 
V.  Wilcox,  3  Yerg.  278. .  592,  603 

V.  Williams,  54  Mo.  171 53 

V.Williams,  117  Mo.  379...  649 
V.  Williamson,  43  Tex.  502  23 
V.Williamson,  68  Iowa,  351591, 

698 
V.  Williamson,  106  Mo.  163    53 

V.  Wilson,  42  Kan.  587 649 

V.Wilson,  72  Minn.  622 187 

V.WIndahl,  95  Iowa,  470...  591 


State  V.  Windsor,  5  Harr.  (Del.) 

512  532 

V.  Woolard,  111  Mo.  248. .  62,  73 
Stewart   v.   Com.,    2   Ky.   Law 

Rep.   386 583 

Stewart  v.  Huntington  Bank,  11 

S.  &  R.  267 640 

Stinson  V.  People,  43  111.  397. . .  666 

Stokes  V.  State,  18  Ga.  17 476 

Stokes      V.      State,      6      Baxt. 

(Tenn.)  619 699 

Stone    V.    State,    22    Tex.    Ct. 

App.  186 93,  121 

Storey  v.  People,  79  III.  45 313 

Stuart  v.  People,  42  Mich.  255  369 
Suit  '.  State,  30  Tex.  Cr.  App. 

319  220 

Sullivan  V.  Onieda,  61  111.  242..  358 
Sullivan  V.  State,  67  Miss.  346  617 
Swan  v.  Keough,  35  App.  Div.  80    96 

Swan  V.  People.  98  III.  610 46 

Swan  V.  State,  4  Humph.  136. . .  203 

T. 

Talbert  v.  Strom,  21  N.  Y.  S. 

ijjg      _  ^  _  goQ 

Taulman  v.  State.  37  Ind.  353.".'  377 
Taylor  v.  Com.,  3  Ky.  Law  Rep. 

783  683 

Taylor  v.  Forbes,  11  East,  315. .  380 
Taylor     v.     Jones,     2     Head 

(Tenn.),  565 557 

Taylor  v.  Taintor,  16  Wall.  371  406 
Terra  Haute  &  Ind.  R.  R.  Co. 

V.  .Tackson,  81  Ind.  19 556 

Territory    v.    Brash,    32    Pac. 

Rep.  260 649 

Thomas'  Lessees  v.  Cummings, 

1  Yates,  40 318 

Thomas    v.    People,    23     Pac. 

Rep.  326 301 

Thomas  v.  State,  2  Tex.  App. 

294  23 

Thomas  v.   State,   36  Tex.  Cr. 

R.  179  224 

Thompson  v.  Best,  4  N.  Y.  Supp. 

229   359 

Thompson   v.   Com.,   20   Gratt. 

724  284 

Thompson  v.  Hlgglnbotham,  18 

Kan.  42 358 

Thompson  v.  People,  96  III.  158  515 
Thompson  v.  People,  144  111.  378  714 
Thompson  v.  State,  51  Miss.  553  592 
Thompson  v.  State,  92  Ga.  448  124 
Thompson  v.  State,  60  Ga.  619  618 
Thompson  v.  Thompson,  77  Ga. 

692  3 


XX.l 


AMKUICAN  CIIIMINAL  RKPORTS. 


Rcfeivnceg  are  to  p:iKP«. 


Thorley'9  Cbho,  K<'l>nK.  27. . . . 
Thrash  v.  Uennott,  57  Ala.  u>» 
Thulemcyer  v.  State,  ^8  Tex. 

Cr.  API).  349 •;• 

Thurman  v.  State,  :12  Neb.  2.>- 
Tlco  V.  Heove.s,  ;{()  N.  .1.  L.  -iH 
TIndall  v.  State,  71  Ind.  314  ... 
Toler  V.  State,  16  Ohio  St.  583 

Torrey  ft  Glenn  v.  People,  17 

111.  105 • 

Town  of  Northfleld  v.  Town  of 

Plymouth,  20  Vt.  582 

Town  of  Whiting  v.  Doob,  152 

Iml.  157 

Towne  v.  People,  101  III.  382. . . 
Town.send  v.  Burns,  2  Cromp.  & 

J.  4fiS 

Trausch  v.  County  of  Cook,  147 

111.  534   

Trippo  V.  Wynne,  76  Oa.  200. . . 
Trultt  V.  People,  88  III.  518.... 
Trustees  v.  ChlcaRo,  14  111.  3,'?4 
Tucker  v.  Hennlker,  4i  N.  H. 

317 93, 

Tucker  v.  People,  156  111.  511. . 
TuKman  v.  Chicago,  78  111.  405 
Tnrbevllle  v.  State,  56  Miss.  703 
Turner  v.  Com.  (Pa.),  27  Am. 

R.  683  

Turner  v.  Com..  86  Pa.  St.  54. . 
Turner  v.  People,  33  Mich.  309 
Tuttle  V.  Wilson,  24  111.  553. .. . 


651 
379 

446 

544 
162 
646 
64, 
67 

378 

162 

370 
515 

379 


3.-0 
639 
378 
357 

115 
173 
608 
714 


38 

64 

370 

379 


u. 

United  States  v.  Brltton,  108 

IT.  S.  199  516 

v.Carll,  105  U.  S.  611 516 

V.Collins,  79  Fed.  Rep.  65  358 

V.  Collins.  1  Wood,  499 700 

V.  Cruikshank,  92  U.  S.  542  516 

V.Dodge,  2  Gall.  313 318 

V.  Gideon,  1  Minn.  202   592.  603 

v.Hess.  124  U.  S.  483 516 

v.Hlrsch,  100  IT.  S.  33 516 

V.  Hudson,  7  Cranch,  32 309 

V.James,  60  Fed.  Rep.  2br  700 

V.  McKee,  4  Dill.  128 628 

V.  Perez,  9  Wheat.  579 551 

V.  Polite,  35  Fed.  Rep.  59..  352 
V.  Rauscher,  119  U.  S.  407  405 
V.  Routenbush,  1  Bald.  517  203 
V.  Simmons,  96  V.  S.  360. . .  516 
V.  Tureaud,  20  Fed.  Rep. 
621 352.  306,  375 

United   States  Express  Co.  v. 
Hutchlns,  58  111.  44 47 

Usom's  Case.  97'Ga.  194 677 


V. 


Van  Buren  v.  State.  24  MIbs. 

513   200 

Van    n)iRon    v.    Newcomer,    40 

Mich.  90 538 

Van  Kgan  v.  Herold,  19  N.  Y.  S. 

4.-)6  380 

Vogol  V.  Pekoe,  157  111.  .339 359 

VoHburg  v.   McCrnry,   77   Tex. 

572   634    . 

w. 

Walker,  In  re,  82  N.  C.  95 318 

Walker  v.  State,  9  Tex.  Cr.  App. 

177  384 

Walker  v.  State,  37  Tex.  ,366..  76 
Walker  v.  State   42  Tox.  369    03,  67 

Walker  v.  State,  117  Ala.  42 400 

Walls  V.  State,  90  Ala.  618 156 

Walrath  v.  State,  8  Neb.  80 20 

Walter  v.  State.  105  Ind.  589  644 
Walters  v.  State,  39  Ohio  St. 

215 38,  4.5 

Warenzak  Case,  Chi.  Law  Hul., 

Apr.  26,  1896 376 

Warickshall's    Case,    1    Leach, 

Cr.  Cas.  263 282 

Washington  v.  State,  53  AU    20  285 

Washington  v.  State,  87  Ga.  12  124 

Waterman  v.  People,  67  111.  91  434 

Watson    In  re,  19  R.  I.  342 29 

Watson  v.  Com..  95  Pa.  St.  418  64 

V.'att  v.  State,  61  Ga.  66 127 

Weaver  v.  State,  83  Ind.  289..  049 
Webb  v.  State,  39  Tex.  Cr.  Rep. 

5.34   446 

Wells  V.  Com.,  21  Gratt.  500  307,  309 

Welsh  V.  People,  17  111.  3.39....  566 

Welsh   V.   People,   30   111.   App. 

399   3j() 

West  v.'people.  137  ill.  189  ..'.".'  512 
Westlnghausen    v.    People.    44 

Mich.  265  329 

Wetherbee's  Ex'rs  v.  Wether- 
bee's  Heirs,  38  Vt.  454 536 

Wharton's  Case,  Yelv.  24 184 

Wheeler    v.    Sawyer,    15    Atl." 

Rep.  67 246 

While   v.   State,    30   Tex.    App. 

652  500 

White  V.   Wager,   83  111.   App. 

592   379 

Williams  v.  Brooklvn  Elev.  R. 

R.  Co.,  126  N.  Y.  96 92,  09 

Williams  v.  Com..  27  Gratt.  007  289 
Williams  v.  Davidson,  43  Tex. 

33  634 


TABLE  OF  CASES  CITED. 


XXlil 


RoferencoH  are  to  paKt*i> 


Willtama  r.  People,  101  III.  382  29.1 
Williams  T.  People,  96  111.  158. .  615 
Williams  V.  State,  54  Ala.  131. .  173 
Williams  V.  State,  100  Oa.  511  698 
WilllamR  V.  State,  32  S.  E.  Rep. 

12!)  127 

Williams     V.     United     States, 

108  IF.  S.  382 121 

Williams  V.  Williams.  63  Wis. 

58  162 

Willis  V.  Oil  City,  52  N.  W.  Rep 


652 


325 


Wilson  V.  Hill.  13  N.  J.  Bq.  143  175 
Wilson  V.  State,  42  Mi.ss.  (139..  646 
WilHon  V.  State,  19  S.  W.  Rep. 

2r.r.  204 

Wilson  V.  Territory,  1  Wyo.  155  318 
Winn  V.  Pattprson,  9  Pot.  663. .  135 
Winters  v.  State,  37  Tex,  Or. 

Rep.  582 153 

Wise  V.  Rogers,  24  Gratt.  169. .  322 
Wisdom  V.  People,  17  Pac.  Rep. 

519  39 

Wisdom  V.  Wisdom.  24  Neb.  551  28 
WItten  V.  State,  4  Tex.  App.  70  23 
Wodlen  v.  Hunt,  4  Iowa,  355. . .  380 


Wolverton  v.  State,  16  Ohio,  173  173 
Womble  v.  State,  39  Tex.  Cr. 

Rep.  24 433 

Wood  V.  State,  34  Ark.  341  202,  575 
Woodson  V.  Com.,  21  S.  W.  Rep. 

584   144 

Woolfolk's  Case,  81  Ga.  551 608 

Wooster  v.  Plymouth,  02  N.  H. 

193   611 

Wright  V.  Court  et  al.,  6  Dowl. 

&  Ry.  623    294 

Wright  V.  People.  4  Neb.  407  . .  544 
Wright  V.   State,   40   Tex.   Cr. 

Rep.  447  693 

Wright  V.  State.  30  Ga.  325 601 

Wrompelmler  v.  Moses,  3  Bax. 

470  2 

Wyatt  V.  People.  17  Colo.  252. .  313 

Y. 

Yance  v.  People,  34  Mich.  286  370 
Yee  Gee,  Re,  83  Fed.  Rep.  145. .  191 
Young  V.  Cannon,  2  Utah,  560. .  318 
Yundt  V.  People.  65  111.  374. .. .      9 


m 


I 


AMERICAN 


CRIMINAL    REPORTS 


Armstrong  v.  State. 

101  Tenn.  389—47  S.  W.  Rep.  492. 

Decided  October  18,  1898. 

Abatement:  Verification  of  plea  in  abatement. 

"The  defendant  makes  oath  that  the  statements  in  the  above  plea  are 
true,"  is  a  good  verification. 

Appeal  in  error  from  Circuit  Court  of  Hamilton  County; 
Hon.  Floyd  Estill,  Judge.    Reversed. 

Cleft  &  Cummings,  for  the  appellant. 
Attorney-General  Picket,  for  the  State. 

Caldwfxl,  J.  Albert  Armstrong  was  indicted  for  the  lar- 
ceny of  a  watch.  The  person  arrested  under  that  indictment 
filed  a  plea  of  misnomer  in  abatement.  This  plea  was  stricken 
out,  because,  in  the  opinion  of  the  court,  not  sufficiently  verified. 
The  defendant  refused  to  plead  further,  and  thereupon  the  court 
directed  a  plea  of  not  guilty  to  be  entered.  Upon  the  issue  thus 
formed  the  defendant  was  tried,  convicted,  and  sentenced  to 
sone  four  years  in  the  penitentiary.  Motions  for  a  new  trial 
and  in  arrest  of  judgment  were  then  successively  made  and  over- 
ruled. The  defendant  appealed  in  error  to  this  court,  and  here 
insists  that  his  plea  was  improperly  stricken  out.  The  verifica- 
tion of  the  plea  was  in  these  words :  "The  defendant  makes  oath 
that  the  statements  in  the  above  plea  are  true."  This  the  trial 
court  ruled  to  be  fatally  defective,  because  not  followed  by  the 
additional  clause,  "in  substance  and  in  fact."  In  this  ruling 
VouXI  — 1 


I  1 

i 
i 

^  y 


2  AMERICA:-:  CUIMINAL  REPORTS. 

tlio  court  U'Uv  ^^■■,^^  in  error.  The  affidavit  was  sufficient  as 
m-vlc  aiul  tlio  a.Mirion  of  tl.o  otlior  words  c*nM  have  made  it 
,„i  lK-tt(M-  Tlie  statute  proscribes  no  particuhn-  form  of  verifica- 
tion Its  languaue  is:  "Xo  plea  in  abatement  shall  be  received 
in  anv  court,  unless  its  truth  is  veritned  by  the  oath  of  the  party 
or  otherwise."  Code,  §  2!>01 ;  M.  &  V.,  §  3G11;  Shannon, 
^  4022.  If  the  defendant  makes  oath,  as  in  this  case,  that  the 
statements  iahis  ])lea  are  true,  "its  truth  is  verified  by  the  .lath 
of  the  party ;"  and  that  is  all  the  statute  requires.  If  he  swears 
the  plea  is  true,  the  truth  of  the  plea  is  verified  by  his  oath,  and 
the  ust  of  the  words  "in  substance  and  in  fact"  add  nothing  to 

its  legal  cflfect. 

Judge  Caruthors,  than  whom  no  bettor  pleader  under  the  eo.ln 
has  been  known,  gives,  as  a  prr.])er  and  sufficient  form  of  verifi- 
cation of  a  plea  in  abatement,  the  following:  "The  defendant 
makes  oath  that  the  above  plea  is  true."  Hist.  Lawsuit  (Ed. 
1800),  sec.  IS.').  In  :Martin's  edition  of  the  same  work  tho 
clause,  "in  substance  and  in  fact,"  is  added.  TTist.  Lawsuit 
(Martin),  sec.  8;1  Tho  latter  form  is  tho  one  given  by  Chitty 
(2  Chitty  ri.  44.")),  and  is  in  rather  general  use.  1  Enc.  PI. 
&  Pr.  2!);  1  Enc.  Forms,  20,  27,  and  citations.  The  form  is  un- 
doubtedly good,  yet  it  is  not  tli*^  only  one  that  is  good.  The  re- 
quirement is,  that  the-  affidavit  as  ^o  the  truth  of  the  plea  must 
be  positive  and  leave  nothing  to  be  eollpcted  by  inference.  7>rt)i/.- 
r.  Jones,  1  Swan,  391 ;  ]Vroinpclmicr  v.  Mnscs,  3  Bax.  470.  In 
the  Bo'vh  Case  the  statement  was  that  the  aftlant  "is  informed 
and  believes  that  the  above  jiloa  is  true  in  substance  and  matter 
of  fact."  The  court  said  the  afF.davit  was  insufficient,  because 
made  on  information  and  belief  rather  than  upon  knowledge; 
that  the  affidavit  nnist  be  positive,  stating  "that  the  plea  is  true 
in  substance  and  fact;"  not  meaning  by  the  latter,  however,  to 
prescribe  an  exact  form,  but  only  to  say  what  was  requisite,  as 
contradistinguished  from  a  verification  on  information  and  be- 
lief. 1  Swan,  392.  In  the  M'rowprJmirr  Case  the  affidavit  was, 
that  the  "facts  stated  in  the  idea  are  true,  to  the  best  of  his 
knowledge,  information,  and  belief."  The  court  said  the  veri- 
fication would  have  been  good  if  it  had  stopped  with  the  state- 
ment that  the  "facts  stated  in  the  ploa  are  true,"  but  that  it  was 
rendered  uncertain  and  insufficient  by  the  qualifying  words 


fe-^ 


TAYLOR  V.  STATE. 


8 


added.  3  Bax.  470.  The  verification  in  the  present  case  ia 
positive,  absolute,  and  unqualified,  and,  being  so,. it  is  entirely 
sufficient. 

Keversed  and  remanded. 


Taylor  v.  St/te. 

105  Ga.  846—33  S.  E.  Rep.  190. 

Decided  March  4.  1899. 

Abortion:  Child  Alive  ob  Not:  Instruction  thereon — New  trial. 

1.  The  word  "child,"  as  used  in  section  81  of  the  Penal  Code,  means 

a  "living  child;"  that  is  to  say,  "an  anborn  child  so  far  developed 
as  to  be  ordinarily  called  'quick,' "  and  which  is  still  alive  when 
the  alleged  unlawful  means  are  employed  to  produce  the  mis- 
carriage or  abortion. 

2.  When,  in  the  trial  of  an  indictment  founded  upon  this  section,  one 

of  the  main  defenses  was  that  the  child  was  not  in  fact  living 
at  the  time  the  alleged  offense  was  committed,  and  the  evidence 
bearing  on  this  question  was  so  conflicting  as  to  make  it  a  close 
and  doubtful  case,  the  refusal  to  give  in  charge  to  the  jury  a  writ- 
ten request,  properly  framed,  and  asking  the  judge  to  call  the 
attention  of  the  jury  to  this  specific  defense  by  instructing  them 
that  the  child  must  have  been  in  fact  alive,  or  there  could  be  no 
conviction,  is  cause  for  a  new  trial.  This  is  so,  although  the  court 
did  in  general  terms  charge  upon  the  law  relating  to  this  sub- 
ject. Thompson  v.  Thompson,  77  Ga.  692,  3  S.  E.  Rep.  261;  Met.  R. 
Co.  V.  Johnson,  90  Ga.  500,  16  S.  E.  Rep.  49;  Bell  v.  State,  103  Ga. 
12,  29  S.  E.  Rep.  451. 

3.  There  was  no  error  in  refusing  to  give  to  the  jury  the  other  requests 

to  charge,  as  the  principles  embraced  in  such  of  them  as  were 
pertinent  to  the  case  were  more  fully  and  specifically  covered  in 
the  general  charge  than  in  the  requests.  There  was  no  error  in 
any  of  the  charges  complained  of.  Some  of  the  exceptions  to  the 
admission  of  evidence  do  not  state  what  objection  was  made  at  the 
time,  and  others  refer  to  the  brief  to  show  what  the  objectionable 
testimony  was.  These  cannot  be  considered.  The  evidence  of 
the  admission  of  which  complaint  is  properly  made  was  legally 
admissible.  The  grounds  of  the  motion  for  new  trial  which  com- 
plain oi  the  overruling  of  the  demurrer  to  the  indictment  cannot 
be  considered,  for  the  overruling  of  such  a  demurrer  Is  not  ground 
for  new  trial.  The  grounds  complaining  of  the  refusal  to  change 
the  venue,  of  holding  that  a  juror  over  sixty  years  of  age  was  in- 
competent to  try  the  case,  and  of  refusing  to  grant  a  new  trial, 
because  of  newly  discovered  evidence,  are  likewise  not  considered, 
as  the  questions  are  not  likely  to  arise  on  the  next  trial. 
(Syllabus  by  the  Court.) 


AMERICAN  CRIMINAL  REPORTS. 


I- 


Judgment  reversed,  all  the  justices  concurring. 
W.  A.  Taylor  was  convicted  in  the  Superior  Court  of  Douglas 
County,  C.  G.  Janes,  Judge,  and  appeals.    Reversed. 

IF.  T.  Eobciis,  Solicitor  General,  J.  R.  Huiclicson,  and  T.  17. 
Eiicker,  for  the  State. 

J.  S.  James,  B.  0.  Griggs,  IF.  .1.  James,  and  J.  Y.  Edge,  for 
appellant. 


'S 

1 

^i 

|:         1 

i! 

l! 

Pkople  v.  Abbott. 

116  Mich.  263—74  N.  W.  Rep.  529. 

Abortion:  Manslaughter:  Grades  of  offense— Variance — Hearsay  evi- 
dence. 

1.  Under  the  statute,  death  from  an  abortion  on  a  woman  not  quick 

with  child  would  be  manslaughter  rather  than  murder. 

2.  An  act  undesignedly  resulting  in  the  death  of  another,  not  amount- 

ing to  felony,  but  malum  in  se,  constitutes  manslaughter. 

3.  The  fact  that  the  woman  consented  does  not  raise  a  fatal  variance, 

because  the  information  charges  "with  force  and  arms." 

4.  It  is  hearsay  for  a  physician  to  testify  that  he  understood  that  cer- 

tain money  paid  him  was  paid  by  defendant;  and  also  hearsay 
are  statements  of  a  woman  admitted  in  evidence,  not  made  in  the 
presence  of  defendant,  that  she  was  in  the  habit  of  performing 
such  operations. 

Error  tn  ITilJpdale  County  ;  Lano,  .Tndge, 
Conviction  for  manslauiihter.    Reversed. 

Fred  A.  Mai/nard,  Attorney-Goneral,  W.  IT.  FranMiaiiser, 
Prosecuting  Attorney,  and  (linj  M.  (licsfrr,  for  the  People. 
Noah  P.  Lovmidge  and  Corv'is  M.  Barro,  for  the  appellant. 

IIooKKK,  J,  The  defendant  was  convicted  of  manslauiihtcr. 
as  an  accessor/  hcfore  the  fact,  in  causing  the  death  of  Viola 
Stevens  through  the  use  of  an  instrument  in  an  attempt  to  cause 
a  miscarriage. 

To  understand  the  points  raised,  reference  should  he  had  to 
the  statutes  relating  to  the  subject.  2  How.  Stat.,  §  i»100,  pro- 
vides that  the  wilful  killing  of  an  uiihorn  quick  child,  l>y  any 
injury  to  the  mother  which  would  be  murder  if  it  resulted  in 


PEOPLE  V.  ABBOTT. 


the  mother's  death,  shall  he  manslaughter.  Section  9107  makes 
an  attempt  to  destroy  an  unborn  quick  child  through  medicine 
administered  to,  or  instruments  used  upon,  the  mother,  man- 
slaughter when  followed  by  the  death  of  the  child  or  mother,  un- 
less necessary  to  preserve  the  life  of  the  mother,  or  so  advised 
by  two  physicians.  Section  9108  punishes  as  a  misdemeanor 
the  wilful  employment  of  drugs,  etc.,  or  instruments  upon  ii 
pregiiant  woman,  with  intent  to  procure  a  miscarriage,  subject 
to  the  exceptions  mentioned  in  the  preceding  section.  See  2  How. 
Stat.,  §  8438 ;  People  v.  Olmskad,  30  Wid\.  431.  The  informa- 
tion ''ontained  separate  counts  for  murder  and  manslaughter, 
and  also  a  count  upon  the  last  mentioned  section,  viz.,  9108.  In 
his  charge  to  the  jury  the  learned  circuit  judge  said  that  the  de- 
fendant could  not  be  convicted  of  murder,  and  that  he  could  not 
be  convicted  of  statutory  manslaughter  under  section  0107,  be- 
cause Viola  Stevens  was  not  shown  to  have  been  pregnant  with 
a  quick  child,  in  the  sense  that  such  term  is  used  in  the  law.  He 
instructed  them  that  the  defendant  might  be  convicted  of  a  mis- 
<lemeanor,  under  section  9108,  or  that  he  might  be  found  guilty 
of  manslaughter,  upon  the  theory  that  death  to  tlie  mother  re- 
sulted from  the  act,  which  was  made  unlawful  and  punishable 
by  section  910S,  under  the  Avell-establislied  rule  that  "if  a  per- 
son, whilst  doing  or  attempting  to  do  another  act,  undrsignedly 
kill  a  man,  if  the  act  intended  or  attem])teil  were  a  felony,  the 
killing  is  murder;  if  unlawful,— »»rti'«»i  in  se, — ^Imt  not  amount- 
ing to  a  felony,  the  killing  is  manslaughter;  if  lawful — that  is, 
not  being  malum  in  so, — lioniiciilc  by  mi-sadventure  merely." 
See  People  v.  Scott,  G  :Mi('b.  293. 

The  defendant's  coimsel  take  the  position  that  under  these 
statutes  there  can  be  no  conviction  of  the  offense  of  murder 
where  death  is  caused  by  any  of  the  acts  therein  made  punish- 
able; that  there  can  be  no  conviction  of  manslaughter  in  such 
cases  except  when  the  woman  was,  at  the  time  of  the  commis- 
sion of  the  act,  precuJ'.nt  with  a  quick  child,  as  provided  in  sec- 
tions 910G,  9107;  and  that  it  necessarily  follows — the  judge 
having  determined  and  instructed  the  jury  that  Viola  St~veus 
was  not  shoAvn  to  have  been  pregnant  with  a  quick  child — that 
the  defendant  could  be  convicted,  if  at  all,  only  of  the  misile- 
meanor  created  by  section  9108.    This  contention  rests  upon  the 


t  H 


6 


AMERICAN  CRIMINAL  REPORTS. 


proposition  tliiit  such  act  was  noi  unlawful  at  the  common  law, 
it  being  no  offense  to  attempt  to  produce  an  abortion  upon  a 
wonunrpregnant,  but  not  with  a  quick  child,  with  her  consent, 
and  upon  the  theory  that  the  legislature  has,  by  section  9107, 
shown  an  intention  to  reduce  the  offense  from  murder  to  man- 
slaughter in  cases  where  a  woman  pregnant  with  quick  child 
conies  to  her  death  in  tliis  way,  and  upon  the  fact  of  its  failure 
to  i)rovide  in  section  1)108  additional  punishment  where  the 
woman  upon  Avhom  a  miscarriage  is  sought  to  be  produced  dies 
in  consecpience  thereof,  from  which  it  is  said  that  it  must  be  in- 
ferred that  the  intention  was  to  make  the  penalty  prescribed  by 
that  section  the  limit  in  all  cases. 

We  think  this  theory  should  not  prevail.  If  we  could  say  that 
the  law  recognizes  the  lawfulness  of  attempts  to  produce  mis- 
carriages, there  would  be  more  force  in  the  contention  that  a 
fatal  result  to  the  mother  would  be  excusable  homicide,  though 
we  do  not  mean  to  intimate  such  an  opinion ;  but  the  legislature 
have  been  to  the  trouble  lo  make  the  mere  attempt  to  cause  a  mis- 
carriage punishable  by  a  year's  imprisonment,  and  we  cannot 
believe  that  they  intended  that  the  death  of  the  mother  should 
be  treated  as  a  misadventure.  It  is  more  reasonable  to  believe 
that  they  left  that  subject  to  be  governed  by  existing  rules  of 
law.  Upon  this  theory  it  was  reasonable  for  the  circuit  judge 
to  say  that  the  defendant  could  not  be  convicted  of  murder,  be- 
cause that  would  have  been  the  extent  of  the  offense  had  the 
child  been  quick;  and  it  is  not  to  be  supposed  that  the  law  would 
be  more  severe  in  a  case  where  the  child  had  not  quickened  than 
where  it  had,  even  if,  under  existing  rules,  the  passing  of  sec- 
tion 9108  would  otherwise  have  made  such  offense  murder.  See 
Com.  V.  Railway,  113  Pa,  St.  37.  ^Vithout  deciding  this  ques- 
tion, however, —  it  being  unnecessary, — we  must  determine 
whether  the  conviction  of  manslaughter  can  be  upheld.  It  may 
be,  unless  it  can  be  said  (1)  that  at  common  law  a  conviction 
could  not  be  based  on  accidental  killing  through  an  unlawful 
act  less  than  a  felony,  or  (2)  that  it  cannot  be  based  on  an  act 
made  unlawful  by  statute. 

Mr.  Bishop  asserts  that  "if  the  act  be  both  wrongful  and  in 
its  nature  dangerous  to  life,  even  if  it  be  a  misdemeanor,  yet, 
if  the  element  of  danger  concurs  with  the  element  of  the  un- 


} 


I 
I 


i 


PEOPLE  V.  ABBOTT. 


'  wfuluess  of  the  act,  the  accidental  causing  of  death  thereby  is 
murder."  2  ]iish.  Cr.  Law,  §  G91.  See  Tiff.  Cr.  Law,  815. 
Counsel  contend  that  this  is  not  a  dangerous  act,  basing  the  con- 
tention upon  the  evidence  of  physicians,  which  is  said  to  show 
that  not  more  than  one  per  cent,  of  cases  are  fatal  to  the  woman, 
where  the  child  has  not  quickened.  We  doubt  if  the  effect  of 
this  statute  is  to  depend  upon  the  opinions  of  witnesses  upon  the 
question  of  the  degree  of  danger.  But,  however  that  may  be, 
the  act  was  a  misdemeanor,  and  accompanied  by  some  danger  to 
life,  and  we  shall  find  much  authority  for  holding  that  an  in- 
dictment for  manslaughter  will  lie  in  such  a  case. 

**Jf  a  man  happen  to  kill  another  in  the  execution  of  a  ma- 
licious and  deliberate  purpose  to  do  him  a  perssonal  hurt  by 
wounding  or  iK-ating  him,  or  in  the  wilful  commission  of  any 
unlawful  act  which  necessarily  tends  to  raise  tumults  and  quar- 
rels, and  consequently  cannot  but  be  attended  with  the  danger 
of  ])orsonal  hurt  to  some  one  or  other, — as  by  committing  a  riot, 
robbing  a  park,  etc., — he  shall  be  adjudged  guilty  of  murder." 
1  Hawk.  P.  C.  (Curw.  Ed.),  p.  SG,  §  10. 

Again,  Bishop  says:  "And  if  the  act  were  not  directly  dan- 
gerous, yet  done  with  the  motive  of  committing  a  misdemeanor, 
the  offense  will  be  manslaughter;  but  if,  still  not  being  dan- 
geroiis,  the  motive  were  merely  the  commission  of  a  civil  tres- 
pass, the  unintended  death  would  not  be  indictable  luider  all 
circumstances,  though  under  some  it  would  be  manslaughter. 
To  lay  down,  as  to  this,  an  exact  rule,  sustained  by  authorities, 
seems  impossible.  But,  to  illustrate,  when  a  man  discharges  a 
gun  at  another's  fowls,  in  mere  wanton  sport,  he  commits,  if  he 
accidentally  kills  a  human  being,  the  offense  of  manslaughter, 
while  his  intended  act  is  only  a  civil  trespass;  and  the  same  is 
the  result  when  the  firing  of  the  gun  which  produces  death  is 
with  intent  simply  to  frighten  another,  or  when  one  carelessly 
discharges  the  contents  of  firea-rms,  into  the  street.  And  where  a 
lad  in  a  frolic,  without  meaning  harm  to  any  one,  took  the  trap- 
stick  out  of  the  fore  part  of  a  cart,  in  consequence  of  which  it 
was  upset,  and  the  carman,  who  was  in  it,  putting  in  a  sack  of 
potatoes,  Avas  thrown  backward  on  some  stones  and  killed,  the 
lad  was  held  to  be  guilty  of  manslaughter.  Where  one  covers 
another  with  straw,  and  sets  fire  to*  it,  if  the  intent  is  to  do  a 


8 


AMERICAN  CRIMINAL  REPORTa 


serious  bodily  harm,  and  death  folloM'3,  the  offense  is  murder; 
if  meroly  to  frigliton,  it  is  manslaughter.  (Errington's  Case, 
2  Levvin,  Crown  Cas.  217.)  .  .  .  Giving  one  physic  in 
sport,  if  it  kills  him,  is  manslaughter."  2  Bisli.  Cr.  Law,  §  G92, 
note  4 ;  Td.,  §  003.    See  People  v.  Scott,  6  :Mich.  292. 

Thus  it  appears  that  the  unlawful  act  need  not  always  l)o 
criminal,  and,  where  the  act  done  is  not  of  dangerous  tendency, 
the  offense,  Avhen  death  accidentally  follows,  may  be  manslaugli- 
ter.    2P.ish.  Cr.  Law,  §§070,  G04. 

Again  j\[r.  Bishop  says:  ''Though  the  intent  of  the  wrong- 
doer is  not  to  take  human  life,  and  the  thing  which  he  does  is 
not  of  the  dangerous  sort  contemplated  in  the  hist  few  para- 
graphs, still,  by  accident,  it  may  result  in  death.  And  if  it  does, 
and  if  the  thing  intended  was  malum  in  se  and  indictable, 
whether  as  felony  or  misdemeanor,  a  discussion  in  our  iirst  vol- 
Time  shows  that  a  felonious  homicide  is  conunitted."  Id.,  §  G04. 
See  also  1  Bish.  Cr.  Law,  §§  ?>2:]-X]i]. 

Li  Com.  V.  Pad-er,  9  :^rotc.  (^Niass.)  20.5,  it  was  said:  "The 
use  of  violence  upon  a  woman,  with  an  intent  to  procure  her  mis- 
carriage without  her  consent,  is  an  assault  highly  aggravated  by 
such  wicked  purpose,  and  would  be  indictable  at  common  law. 
So  where,  upon  a  similar  attempt  by  drugs  or  instruments,  the 
death  of  the  mother  ensues,  the  party  making  such  an  attempt, 
with  or  without  the  consent  of  the  woman,  is  guilty  of  the  mur- 
der of  the  mother,  on  the  ground  that  it  is  an  act  done  witlwuit 
lawful  purpose,  dangerous  to  life,  and  that  the  consent  of  the 
woman  cannot  take  away  the  imputation  of  nmlice,  jiny  uu>re 
than  in  case  of  a  duel,  where,  in  like  manner,  there  is  the  con- 
sent of  the  i)arties." 

In  this  case  it  was  held  necessary  to  aver  and  prove  that  the 
woman  was  quick  with  child,  and  the  indictment  was  bold  bad. 
The  following  language  is  signiiicant:  "There  being  no  aver- 
ment, in  the  first  count  in  this  indictment,  that  the  woman  was 
quick  with  the  child,  or  any  equivalent  averment,  and  the  judge 
who  tried  the  case  having  instructed  the  jury  that  it  was  not 
necessaiy  to  prove  such  averment  in  the  third  count,  the  court 
are  all  of  the  opinion  that,  although  the  acts  set  forth  are,  in  a 
high  degree,  offensive  to  good  morals  and  injurious  to  society, 


PEOPLE  V.  ABBOTT. 


0 


yet  tlicy  aro  not  punisliablo  at  common  law,  and  that  this  indict- 
ment cannot  bo  sustained."    Id.  268. 

From  this  and  the  foregoing  authorities  we  may  infer  that, 
had  the  act  been  a  misdemeanor  at  the  common  law,  it  would 
have  supported  an  indictment  for  manslaughter.  We  arc  not 
advised  of  any  authority  which  limits  the  application  of  this 
rule  to  acts  which  were  misdemeanors  at  common  law,  nor  do 
we  see  any  good  reason  for  so  limiting  it.  In  Yundt  v.  People, 
05  111.  374,  it  was  held  that  manslaughter  would  lie  in  a  case 
closolv  analogous  to  the  one  before  us. 

A  further  contention  is  that,  granting  that  the  act  was  in 
dictable,  the  infoinnation  would  not  support  a  conviction  under 
tlic  proof,  in  that  it  alleg'cd  that  the  act  was  committed  with 
force  and  violence,  while  the  evidence  shows  that  it  was  done 
with  the  consent  of  Viola  Stevens.  It  is  urged  that  this  was  a 
fatal  variance.  We  are  cited  to  the  case  of  People  v.  Olmstead. 
?>0  !Mich.  438,  in  support  of  this  claim.  In  that  case  the  in- 
formation is  very  brief,  and  consists  of  the  single  statement  that 
I'ospondent,  on  a  day  and  year  and  at  a  ])lace  named,  "one 
^fary  A.  Ilowers  feloniously,  wilfully,  and  wickedly  did  kill  and 
slay,  contrary  to  the  statute  in  such  case  made  and  provided,  and 
against  the  peace  and  dignity  of  the  State  of  Michigan."  There 
was  nothing  there  to  indicate  the  fact  of  consent,  or  even  the 
nature  of  the  act.  As  the  court  said:  "ITe  might,  perhaps,  be 
fairly  assumed  bound  to  prepare  himself  to  meet  a  charge  of 
manslaughter  by  dii'cct  violence  or  assault."  Moreover,  that 
was  a  statutory  charge  of  manslaughter  under  section  0107, 
2  IIow.  Stat.  The  information  in  this  case  was  more  specific. 
It  clearly  apprised  the  defendant  of  the  nature  of  the  offense, 
unless  it  was  newssary  to  allege  Viola  Stevens'  consent,  and  to 
omit  the  allegation  that  the  act  was  committed  "with  force  and 
arms  in  and  upon  one  Viola  Stevens,  in  the  peace  of  the  People 
of  the  State  of^Iichigan  then  and  there  being,"  etc.  In  our 
opinion  this  was  not  a  fatal  variance,  especially  as  it  was  not 
necessary  to  allege  or  prove  the  assent  of  Viola  Stevens  to  the 
act,  and  as  the  offense  was  the  same  whether  she  assented  or  not. 

We  are  constrained  to  say  that  we  think  the  testimony  of  Dr. 
Niblack,   wherein  he  stated  that  he  understood  that   certain 


rr 


10 


AMERICAN  CRIMINAL  REPORTS. 


iiinno' 


111 


in 


y  paid  liiin  by  ^Ir.  SlK"i)ar(l  was  paid  upon  behalf  of  Mr. 
Abbott,  ^vfls  hearsay,  ami  inadmissible.  The  prosecuting  of- 
ficer urges  that  this\vas  an  adverse  witness,  but  we  think  that 
d(K's  not  justify  the  introduetii.n  of  hearsay  evidence.  We  think 
also  that  the  statements  of  Mrs.  Saunders,  who  is  said  to  havo 
performed  this  operation,  that  she  was  in  the  habit  of  perform- 
ing them  for  the  purpose  of  abortion  and  miscarriage,  and  her 
description  to  the  witness  of  the  inethod  adopted,  were  inad- 

issible.  It  was  competent  to  show  tlie  character  of  the  act  by 
)i-oving  tlint  Mrs.  Saunders  was  engaged  in  tlie  business  of  coni- 

itting  abortions.  As  in  the  case  of  People  v.  Seaman,  107 
Mich.  348,  it  was  competent  to  show  that  others  Avero  operated 
upon  for  such  a  purpose  by  her,  as  it  tended  to  establish  the  de- 
sign with  which  the  operation  was  ])erfonne(l.  This  might  have 
been  proved  by  persons  cf)gnizant  of  the  fact;  but  the  statements 
of  Mrs.  Saimders  that  she  had  done  these  things  were  but  hear- 
say, though  it  would  have  been  different  had  ^Mrs.  Saunders 
been  on  trial.  In  that  case  they  would  have  had  the  force  of  ad- 
missions. Here  they  have  luit.  They  were  not  made  in  the 
presence  of  the  defendant,  nor  do  they  appear  to  have  been 
brought  to  his  knowledge,  and  acted  upon. 

The  judgment  is  reversed  and  a  new  trial  ordered. 

The  other  justices  concurred. 

Note  (by  H.  C.  G.).— Information;  statutory  definition.— Where  a 
statute,  under  the  general  head  of  "Abortion,"  provided  a  penalty  for 
procuring  a  "miscarriage,"  etc.,  and  the  information  used  the  word 
"miscarriage,"  held,  that  it  was  proper  to  follow  the  statute,  and  that 
the  statute  was  not  in  conflict  with  the  constitution  in  not  clearly  ex- 
pressing the  subject  matter  under  its  title;  that  the  terms  are  .so  simi- 
lar in  meaning  and  in  common  use.  and  as  defined,  as  to  practically 
mean  the  same  thing.  State  v.  Crook,  16  Utah,  212,  51  Pac.  Rep.  1091 
(1898). 

Plea  of  former  acquittal. — Demurrer  was  sustained  to  an  Information 
charging  an  attempt  to  produce  a  miscarriage,  and  defendant  dis- 
charged, without  any  order  that  he  be  held  for  further  prosecution. 
Subsequently  the  defendant  was  tried  under  another  information,  al- 
leging the  same  offense  as  in  the  prior  one.  Held,  that  the  judgment 
on  the  demurrer  was  an  acquittal,  in  the  absence  of  any  order  of  the 
court  directing  the  defendant  to  be  held  subject  to  another  information, 
or  to  have  the  case  submitted  to  the  grand  jury.    Id. 

Not  necessary  to  save  !ife.— Where  the  statute  creating  the  offense 
provides  a  condition  that  the  abortion  was  not  necessary  to  save  the 
life  of  the  woman,  etc.,  it  is  necessary  to  plead  it,  and  also  to  show  In 


11 


BONES  V.  STATE. 


11 


the  proof  that  It  was  not  necessary  to  save  life.    State  v.  Schuerman, 
70  Mo.  App.  518. 

Verdict  not  responsive  to  indictment. — Indictment  charged  the  caus- 
ing of  death  by  using  Instruments  with  intent  to  produce  .i  miscar- 
riage. The  verdict  found  defendant  "guilty  of  procuring  abortion,"  etc. 
Held,  that  the  verdict  was  not  in  accord  with  the  indictment.  The  stat- 
ute does  not  use  the  word  "abortion,"  but  provides  a  penalty  for  pro- 
curing a  "miscarriage."  But  the  defendant  was  indicted  for  causing 
death,  not  even  for  procuring  a  miscarriage,  and  in  either  view  the 
verdict  was  not  responsive.  Florien  v.  State,  8  Ohio  Cir.  Dec.  171 
(1897). 


lioNKs  V.  State. 

117  Ala.  146—23  So.  Rep.  485. 

Decided  April  7,  1898. 

AnrsivE  Language:  Within  hearing  of  a  family. 

Uttering  abusive  language  in  hearing  of  family,  need  not  be  in  hear- 
ing of  the  entire  family;  but  should  be  in  the  bearing  of  more  than 
one  person. 

Appeal  from  the  County  Court  of  Bibb  County;  lion.  "N.  II. 
Thompson,  Judge. 

Lou  Bones,  being  convictecl  of  using  abusive  language  near  ii 
dwelling  and  within  the  hearing  of  a  family,  appeals.    Affirmed. 

ir.  S.  Cary,  for  the  appellant. 

irw.  C.  Fills,  Attorney-General,  for  the  State* 


^fcCLKLi-AX,  J.  The  affidavit  charges  that  the  defendant 
"did  enter  into  or  go  sufficiently  near  the  dwelling  house  of 
James  Tarrant,  and  did  make  use  of  abusive  or  insulting  lan- 
guage, within  the  hearing  of  the  family  of  James  Tarrant." 
The  evidence  shows  that  the  defendant  did  enter  into  or  go 
sufficiently  near  said  house,  and  did  there  make  use  of  abusive 
or  insulting  lanp^tiage,  within  the  hearing  of  the  defendant,  his 
wife,  and  several  of  his  children,  but  that  two  of  his  children 
were  not  at  home  that  day.  On  this  state  of  case,  the  defendar.t 
a.sked  the  following  charges:  ''(2)  The  court  further  instructs 
the  jury  that  they  should  acquit  the  defendant  provided  the  evi- 


T 


IS 


AMERICAN  CRIMINAL  REPORTa 


ti 


ii 


(loncc  shows  tlint  flbnsivc  or  insulting  Inngungo  wns  mndo  U80 
of  within  tho  iicaring  of  sonio,  and  not  nil,  the  menibors  of 
Jnnics  Tarrjint's  family."  "(3)  Tho  court  instructs  tho  jury 
tliat  it  is  thoir  duty  to  acquit  tho  defendant  provided  tho  evi- 
(Kmk'o  shows  that  any  moniher  of  James  Tarrant's  family  did  not 
hear  any  abusive  or  insulting  language."  These  clinrges  woro 
sevornlly  refused,  and  the  rulings  of  the  court  thereon  are  in- 
sisted upon  here  as  erroneous. 

The  statute  (Code  18m;,  §  40.31)  under  which  tho  prosecu- 
tion is  had  provides:  "Any  person  who  enters  into  or  goes  suf- 
fioicntly  near  the  dwelling  house  of  another,  and  in  tho  pres- 
ence or  hearing  of  the  family  of  the  occupant  thereof,  or  any 
nioniber  of  his  family,  uses  abusive  and  insulting  language," 
etc.,  "must  on  conviction  be  fined,"  etc.  And  the  question  is, 
what  is  meant  by  the  word  "family"  in  this  section  ?  A  family, 
r.i-  vi  termini,  must  be  more  than  one  person ;  hence  the  provision 
of  the  statute  for  the  protection  of  any  member  of  the  family. 
Without  such  provision  it  would  be  no  offense  to  use  the  inter- 
dicted language  in  the  presence  of  one  member  of  the  family. 
P)ut  it  by  no  means  follows  that,  to  fill  tho  other  provision  of 
the  statute,  all  the  members  of  the  occupant's  family  should  bo 
present.  There  is  no  room  for  saying,  we  think,  that  the  occu- 
])ant,  his  wife,  and  several  children  did  not  constitute  a  family 
in  the  sense  of  the  statute,  merely  because  two  of  his  children 
were  not  present.  To  so  hold  would  be  a  technicality  of  con- 
struction which  the  words  of  the  statute  do  not  require,  and 
which  is  essentially  repugnant  to  the  manifest  purposes  of  tho 
enactment.  In  ordinary  acceptance,  husband,  wife,  and  several 
chihlren  at  the  time  present  constitute  a  family,  and,  as  such, 
are  as  much  under  the  protection  of  the  statute  as  if  every  mem- 
ber of  the  family  was  present.  We  accordingly  hold  that  tho 
county  court  properly  refused  each  of  said  charges,  and  its  judg- 
ment must  be  affirmed.    Affirmed. 


1   I 


STATE  V.  GIFFORD. 


13 


State  v.  Giffokd. 

19  Wash.  464—53  Pac.  Rep.  709. 
Decided  June  14,  1898. 
Accessoky:  Pleading. 

1.  The  statute  abolishing  the  distinction  between  principals  and  ac- 

cessories does  not  alter  the  rule  of  pleading  that  the  facts  consti- 
tuting the  offense  must  be  set  out. 

2.  An  Information  charging  the  accused  with  rape  cannot  be  sustained 

by  proof  that  he  procured  another  to  commit  the  act. 

Apponl  from  the  Superior  Court  of  Spokane  County;  Hon. 
Thomas  11.  Brents,  Judge.    Reversed. 

Del  Cory  Smith  and  Fenton  &  O'Brien,  for  the  appellant. 
John  A.  Pierce,  Prosecuting  Attorney,  for  tlie  State. 

DiTNDAR,  J.  An  information  was  filed  hy  the  prosecuting 
nttornoy  of  Spokane  county  against  the  appellant,  charging  him 
with  the  crime  of  rape.  Upon  trial  of  the  cause  the  defendant 
was  found  guilty  as  charged  in  the  information,  and  was  sen- 
tenced to  the  penitentiary  for  life. 

A  motion  was  made  to  quash  the  information  for  the  reason 
that  the  State  was  not  entitled  to  prosecute  the  appellant  herein 
hy  information.  We  have  decided  this  question  adversely  to 
ai)i)ollant's  contention  so  often  that  we  decline  to  enter  into  \\n 
investigation  again. 

A  demurrer  was  also  interposed  to  the  information  ;  appellant 
contending  that  it  is  not  direct  and  certain  as  regards  either  the 
I)arty  charged,  the  crime  charged,  or  the  particular  circumstan- 
ces of  the  crime  charged,  and  that  the  information  did  not  in- 
form the  appellant  of  the  nature  and  cause  of  the  accusation 
against  him.  The  material  part  of  the  infornmtion  is  as  io\- 
l(»ws : 

"Elmer  Gifford  is  herehy  charged  with  a  public  offense,  to 
wit,  the  crime  of  rape,  committed  as  follows,  to  wit:  That  on 
the  7th  day  of  July,  A.  D.  1897,  and  within  three  years  next 
before  the  filing  of  this  information,  at  the  county  of  Spokane 
and  State  of  Washington,  the  said  defendant,  Elmer  Gifford, 
then  and  there  in  the  said  county  and  State  being,  then  and 
there  unlawfully  and  feloniously  did  carnally  know  one  Flossie 


14 


AMERICAN  CRIMINAL  REPORTS. 


]mi]1(  r,  tlio  said  Flojjsic  Fuller  then  and  there  being  a  female 
child  under  the  age  of  eighteen  years,  and  not  the  wife  of  tiie 
said  Eliner  Giflford — contrary  to  the  statute,"  etc. 

We  hardly  see  how  the  information  eould  have  been  more 
definite  and  certain  in  regard  to  the  crime  charged,  or  the  party 
charged,  or  the  particular  circumstances  of  the  crime  charged ; 
and,  that  being  true,  we  think  tlie  information  informed  the  ap- 
l)ellant  of  the  nature  and  cause  of  the  accusation  against  him, 
and  the  ucnmrrer  was  therefore  properly  overruled. 

The  tesrinio.iy,  however,  showed  that  the  appellant  was  an 
accessory  before  the  fact  t<i  the  crime  of  rape.  Testimony  was 
introduced  to  show  that  he  acted  as  a  procurer;  that  he  sent 
men  to  the  rooms  of  the  prosecuting  witness,  and  aided  and 
abetted  them  in  committing  the  crime  charged  upon  her.  Timely 
objections  were  made  to  the  introduction  of  this  testimony ;  the 
appellant  contending  that  he  had  no  notice  of  the  actual  crime 
which  was  proven  against  him.  Jjut  the  court  overruled  the 
objections  to  the  testimony,  on  the  strength  of  a  decision  of  this 
coiirt  (viz..  State  v.  Duncan,  7  Wash.  330,  35  Pac.  117,  38  Am. 
St.  Rep.  888),  the  testimony  was  admitted,  and  it  was  upon  this 
character  of  testimony  that  the  appellant  was  convicted.  It  was 
held  by  this  court  in  State  v.  Duncan,  supra, — which  was  a  lar- 
ceny case, — that,  under  the  statute  abrogating  the  distinction 
l)etween  an  accessory  before  the  fact  and  a  principal,  it  was  suf- 
ficient to  charge  the  principal  offense,  and  that  testimony  could 
be  rightfully  admitted,  under  such  an  indictment,  showing  that 
the  defendant  was  an  accessory  before  the  fact.  Upon  more  ma- 
ture consideration,  wo  think  that  case  ought  to  be  overruled; 
and  in  any  event,  it  seems  that  it  would  be  an  inconsistent  rule 
to  apply  to  the  case  at  bar.  The  indictment  in  this  case  charges 
the  offense  of  rape.  Xot  only  that,  but  it  sets  forth  how  the 
crime  was  committed,  viz.,  by  having  carnal  knowledge  of  Flos- 
sie Fuller.  The  constitution,  in  section  22  of  article  1,  which 
is  the  declaration  of  rights,  provides  that  in  criminal  prosecu- 
tions the  accused  shall  have  a  right  to  demand  the  nature  and 
cause  of  the  accusation  against  him.  Surely,  in  this  case,  and 
under  the  direct  language  of  this  indictment,  the  appellant  was 
not  informed  of  the  nature  or  cause  of  the  accusation  against 
him  as  it  was  developed  at  the  trial.    Our  code  provides  that  tho 


i  I 


STATE  V.  GIFFORD. 


15 


0 


act  or  omission  charged  as  the  criiiie  must  be  clearly  and  dis- 
tinctly set  forth,  in  ordinary  and  concise  language,  and  in  such 
a  manner  as  to  enable  a  person  of  common  understanding  to 
know  what  is  intended.    In  other  words,  the  law  provides  for  a 
statement  of  facts.    If  the  requirements  of  the  law  are  that  the 
indictment  must  be  direct  and  certain  as  regards  the  particular 
circumstances  of  the  crime  charged,  then  it  certainly  must  follow 
that  the  proof  must  correspond  with  the  allegations  of  the  in- 
dictment; for  it  cannot  be  said  that  the  indictment  in  this  case 
furnished  the  defendant  with  any  notice  that  proof  would  be  of- 
fered charging  him  with  pr(x?uring  others  to  commit  the  crime 
of  rniio  upon  this  prosc^cuting  witness,  and  it  is  not  the  policy 
of  the  law  to  compel  persons  charged  with  a  crime  to  enter  upon 
their  defense  without  knowledge  of  the  character  of  proof  which 
thoy  will  be  compelled  to  meet.     This  man  was  charge<l  with 
ciiuimitting  the  crime  of  rape  upon  this  girl  by  having  carnal 
knowledge  of  her.    That  was  the  act  which  presumably  ho  would 
rely  upon  the  State's  proving,  and  a  defense  of  this  action  would 
be  what  a  man  of  ordinary  understanding  would  think  it  his 
duty  to  make.    Suppose  that,  when  this  information  was  served 
upon  the  appellant,  he  was  innocent  of  the  crime  charged,  and 
also  innocent  of  being  an  accessory  before  the  fact;  the  crime 
having  been  alleged  to  have  been  committed  in  Spokane,  he 
would  feel  assured  that  he  could  prove  an  alibi  by  proving  that 
he  was  at  that  time  in  Seattle,  or  some  other  distant  place.    Cer- 
tainly he  would  feel  secure  in  resting  upon  such  proof,  and 
would  have  no  notice  whatever  that  he  was  to  prepare  for  a  de- 
fense for  the  crime  of  procuring.     Again,  showing  how  ridicu- 
lous the  application  of  the  rule  contended  for  by  the  State  would 
be  to  a  case  of  this  kind,  suppose  a  woman  should  be  charged 
with  the  crime  of  committing  rape  upon  another  woman,  in  the 
language  and  with  the  particularity  with  which  the  crime  is 
charged  ^n  this  information.     The  information  would  certainly 
be  subject  to  a  demurrer,  for  it  would  show  on  its  face  a  physical 
impossibility.    It  is  true  that  §  1189  of  the  Code  of  Procedure 
(Bal.  Code,  §  6782)  provides  that— 

"No  distinction  shall  exist  between  an  accessory  before  the 
fact  and  a  principal,  or  between  principals  in  the  first  and  sec- 
ond degree,  and  all  degrees  concerned  in  the  commission  of  aa 


w 


16 


AMERICAN  CRIMINAL  REPORTS. 


offense,  whether  thoy  directly  counsel  the  act  constituting  the 
offense,  or  counsel,  aid  and  abet  its  commission,  though  not 
present,  shall  hereafter  be  indicted,  tried  and  punished  as  prin- 
cipals." 

But  we  think  that  this  provision  of  the  law  must  be  construed 
in  connection  with  the  provision  of  the  constitution  just  above 
quoted,  and  the  other  provisions  in  relation  to  the  qualifications 
of  an  indictment  which  we  have  before  pointed  out,  and  that  the 
object  of  this  statute  was  to  do  away  with  some  of  the  technical 
hinch-anees  which  before  existed  in  relation  to  the  trials  of  ac- 
cessories, and  that  it  was  the  intention,  under  this  statute,  that 
the  defendant  might  be  indicted  and  tried  even  though  the 
principal  had  been  acquitted,  and  to  make  an  accessory  before 
the  fact  the  same  as  a  princii)al,  so  far  as  the  punishment  was 
concerned,  and  so  far  as  the  mode,  manner  and  time  of  trial 
were  concerned.  But  we  do  not  thiidc  it  was  the  intention  of  thn 
legislature,  in  the  passage  of  this  law,  to  set  a  trap  for  the  feet 
of  defendants.  The  defendant  enters  upon  the  trial  with  the 
presumption  of  innocence  in  his  favor,  and  if  he  were  called 
upon  to  blindly  defend  against  a  crime  of  which  he  had  no  no- 
tice, and  Avhich,  we  think,  would  be  the  result  of  the  strict  con- 
struction of  this  law  contended  for,  the  law  itself  would  be  un- 
constitutional ;  and  any  departure  from  the  plain  provision  of 
the  code,  which  provides,  in  substance,  for  a  statement  of  facts 
in  the  indictment,  endangers  the  liberty  of  fhe  subject.  The  ac- 
cused may  be  indicted,  and  must  be,  under  the  provisions  of  this 
law,  as  a  principal,  but  the  acts  constituting  the  offense  must 
be  sot  forth.  For  instance,  in  this  case  the  indictment  would 
have  charged  the  appellant  with  the  crime  of  rape,  ''committed 
as  follows:  By  procuring,"  etc.,  instead  of  by  alleging  another 
and  entirely  different  state  of  facta. 

The  conclusion  which  we  have  reached,  viz.,  that  there  was 
a  fatal  variance  between  the  allegations  and  the  proof,  renders 
unnecessary  a  discussion  of  the  other  erroi-s  alleged. 

The  judgment  will  be  reversed. 

Scott,  C.  J.,  and  Axdkks,  Gokdon  and  Reavis,  JJ.,  concur. 


STATE  V.  MORGAN. 


17 


State  v.  Moroax. 

21  Wash.  355—58  Pac.  Rep.  215. 

Decided  July  15,  1899. 
Accessory:  Pleading — Variance. 

1.  The  statute  abolishing  the  distinction  between  principals  and  ac- 

cessories does  not  change  the  rule  of  pleading  that  the  facts  con- 
stituting the  offense  must  be  set  out. 

2.  A  charge,  simply  of  burglary,  cannot  be  sustained  by  proof  that  the 

accused  was  an  accessory  before  the  fact. 

Appeal  from  the  Superior  Court  of  Walla  Walla  County; 
Hon.  Thomas  H.  Brents,  Judge.    Keversed. 

Edgar  Lemman,  for  the  appellant. 

F.  B.  Sliarpstein,  Prosecuting  Attorney,  and  C.  M.  Rader, 
for  tlie  State. 


Per  Curiam.  Appellant  and  two  others,  Elworth  and  Sims, 
Ave  re  jointly  charged  with  the  crime  of  burglary,  committed  ^*n 
Walla  Walla  on  !^[arch  27,  1898.  The  information  charged 
the  facts  as  follows: 

"The  said  John  Elworth,  James  11.  Sims  and  James  Percy 
^Morgan  on  the  27th  day  of  !^[arch,  1898,  in  the  county  of  Walla 
Walla  aforesaid,  then  and  there  being  in  the  night-time  of  said 
day,  a  certain  house  then  and  there  .  .  .  the  dwelling- 
house  of  said  ]\[rs.  ^N".  E.  Koontz,  did  wilfully,  unlawfully, 
feloniously  and  burglariously  break  and  enter  with  intent  then 
and  there  the  personal  goods  and  property  .  .  .  wilfully, 
unlawfully,  feloniously  and  burglariously  to  steal,  take  and 
carry  away,"  etc. 

The  appellant  had  a  separate  trial.  There  was  testimony 
tending  to  show  that  appellant  came  to  Walla  Walla  in  company 
with  the  other  two  charged  in  the  indictment,  and  that  he  and 
Sims  occupied  a  room  together  at  a  lodging  house,  and  that  some 
time  after  the  commission  of  the  burglary  Sims  was  at  appel- 
lant's room.  The  defendant  was  also  found  to  have  burglar's 
tools  in  his  possession.  Sims  was  duly  tried  and  convicted  of 
tlio  burglary  committed. 

There  was  no  testimony  tending  to  show  that  appellant  was 
Vou  XI  — 2 


1 

i'^l 

1    i 

!   ^1? 

V 

i 


f! 


IS 


AMERICAN  CRIMINAL  REPORTa 


present  when  the  crime  was  conimitted.  The  most  that  counsel 
for  the  State  urge  is  that  appelhint  Avas  properly  charged  as  a 
priiieipal,  under  §  G782,  JJal.  Code,  where  the  distinction  be- 
tween an  accessory  before  the  fact  and  a  principal,  and  between 
principals  in  the  first  and  second  degrees,  is  abolished,  and  that 
all  persons  concerned  in  the  commission  of  the  offense,  whether 
they  directly  counseled  the  act  constituting  the  offense  or  coun- 
seled, aided  and  abetted  its  commission,  though  not  present, 
shall  be  indicted,  tried,  and  luuiished  as  principals.  The  su- 
perior court  instructed  the  jury  : 

"Therefore,  if  this  defendant  was  either  present  aiding,  -bet- 
ting, encouraging,  assisting,  or  was  absent  and  by  counsel  or 
understanding  between  himself  and  the  person  or  persons  who 
did  make  the  entry  and  breaking  .  .  .  then  the  act  of  any 
person  with  whom  he  may  have  conspired  to  commit  the  offense 
would  be  his  act  as  much  as  if  ho  had  done  it  in  his  own  person. 
IJut  you  must  be  satisfied  beyond  a  reasonable  doubt  that  he  was 
in  some  way  implicated  or  had  some  connection  with  those  who 
did  commit  it,  in  order  to  convict  him  of  the  offense  charged." 

It  will  thus  be  observed  that  the  defendant,  under  the  instruc- 
tion of  the  court,  could  be  convicted  of  breaking  and  entering  a 
house  if  he  was  in  some  way  implicated  or  had  some  connect iiui 
with  those  who  did  break  into  and  enter  the  house.  Section 
0842,  Bah  Code,  provides:  "The  indictment  must  be  direct  and 
certain,  as  it  regards  the  particular  circamstances  of  the  crime 
charged." 

It  would  seem  that  the  facts  charged  as  constituting  the  crime 
of  the  defendant  in  the  information  were  not  the  facts  shown  at 
the  trial,  and  upon  which  his  conviction  is  demanded,  but  the ' 
variance  is  fatal.  The  case  at  bar  seems  to  fall  directly  within 
the  rule  announced  in  the  case  of  State  v.  Gifford,  19  Wash.  4()4, 
53  Pac.  Kep.  709,  and  upon  its  authority  tlie  judgment  of  tho 
superior  court  is  reversed. 


OEIITER  V.  STATK 


19 


Oeuter  v.  State.  . 

57  Neb.  135—77  N.  W.  Rep.  367. 

Decided  December  8,  1898. 

Accessory  :  Not  to  be  charged  as  principal. 

1.  Tlfe  effect  of  section  1  of  the  Criminal  Code  is  to  make  the  aiding, 

abetting,  or  procuring  of  another  to  commit  a  felony  a  substantive 
and  independent  crime. 

2.  On  an  information  charging  one,  as  principal,  with  having  com- 

mitted a  felony,  the  prisoner  cannot  be  convicted  as  an  accessory. 

3.  The  prisoner  was  Indicted  for  setting  up  and  keeping  gaming  tables 

and  gambling  devices.    The  district  court  instructed  the  jury  that 
if  they  found  that  he  set  up  or  kept  the  gaming  tables  and  de- 
vices, or  "aided  and  abetted  another  so  to  do,"  they  should  find 
him  guilty.    Held  erroneous. 
(Syllabus  by  the  Court.) 

Error  to  tlie  District  Court  of  Douglas  County;  lion.  "\Y.  W. 
Shibaugh,  Judgo. 

Ilonry  Oerter,  being  convicted  of  keeping  gaming  tables, 
brings  error.     Kevcrsed. 

I.  J.  Dunn,  for  plaintiff  in  error. 

C.  J.  Smyth,  Attorney-General,  and  Ed.  P.  Smith,  Deputy 
Attorney-General,  for  tlie  State. 

Tf.vGAN,  C.  In  the  district  court  of  Douglas  county,  Henry 
Oerter  was  convicted  of  the  crime  of  having  set  up  and  kept  for 
gain  certain  gaming  tables  and  gamlding  devices,  contrary  to 
tlie  provisions  of  section  215  of  the  Criminal  Code.  lie  bring's 
llie  judgment  pronounced  upon  that  conviction  here  for  review. 

Of  the  errors  assigned,  Ave  notice  only  one.  On  the  trial  the 
district  court  instructed  the  jury:  "The  material  allegations  in 
the  information,  which  the  State  must  prove  beyond  a  reasonable 
doubt  before  you  will  be  justified  in  returning  a  verdict  against 
tlie  defendant,  are  that  .  .  .  the  defendant,  Henry  Oerter, 
either  alone,  or  knowingly  aiding,  assisting,  or  abetting  another, 
did  unlawfully  and  foloniotisly  set  up,  or  did  unlawfully  and 
feloniously  keep,  for  the  purpose  of  gain,  certain  gaming  tables 
and  gambling  devices  named  in  the  information.  If  you  believe 
that  the  State  has  proved  the  above  material  allegations  as  above 


1? 

ii 

1  'ii! 

i 

i  111 

1  ^4 

I 

I 

20 


AMERICAN  CRIMINAL  REPORTS. 


stated,  beyond  a  reasonable  doubt,  then  and  in  such  case  you 
should  find  the  defendant  guilty  of  the  crime  charged."  Sec- 
tion 1  of  our  Criminal  Code  provides  that  any  person  who  shall 
aid,  abet,  or  procure  any  other  person  to  commit  a  felony  shall, 
on  conviction  thereof,  be  punished  in  the  same  manner  and  to 
the  same  extent  as  tlie  person  who  actually  committed  the  felony 
could  be  punished.  The  effect  of  this  legislation  is  to  make  the 
'  ■  Mng,  abetting,  or  procuring  of  another  to  commit  a  felony  a 
i'  ^'iitive  and  independent  crime.  The  plaintiff  in  error  was 
i.A  diarged  as  an  accessory  before  the  fact,  but  as  principal. 
He  was  not  charged  in  the  indictment  with  aiding  and  abetting 
an  'her  i-^  -*:  up  or  keep  gaming  tables  or  gambling  devices, 
but  with  hnvuig  ■  (inraitted  that  crime  himself.  By  the  instruc- 
tion just  quoted  the  court,  in  effect,  told  the  jury  that,  if  the 
evidence  warranted,  they  might  find  the  plaintiff  in  error  guilty 
of  aiding  and  abetting  another  to  conunit  the  crime  for  which 
the  prisoner  stood  indicted.  This  was  error.  The  prisoner  was 
indicteu  for  one  crime.  Ho  could  not  be  lawfully  convicted  of 
another  and  different  crime,  for  which  he  was  not  indicted. 
inn  i\  State,  42  Xeb.  .503;  Dixon  v.  State,  4G.Xeb.  298;  Wal- 
raih  v.  State,  8  Neb.  80;  Nohud  v.  State,  19  Ohio,  131. 
The  judgment  of  the  district  court  is  reversed. 


5       "5 


MooKE  V.  State. 

40  Texas  Crlm.  Rep.  389—51  S.  W.  Rep.  1108. 

Decided  April  19,  1899. 

Acckssouy:  Discharge  of  accessory  on  death  of  principal— Statute. 

Under  article  90  of  the  Penal  Code  of  Texas,  if  both  principal  and 
accessory  are  arrested,  and  the  principal  dies  before  trial,  the  ac- 
cessory must  be  discharged.  This  is  in  harmony  with  the  com- 
mon  law. 

(Bkooks,  J.,  dissenting.) 

Appeal  from  the  District  Court  of  Dallas  County;   Hon. 
Charles  F.  Clint,  Judge. 
Jack  Moore,  being  convicted  of  murder,  appeals.    Reversed. 
W.  T.  Henry,  for  the  appellant. 
Eobt.  A.  John,  Assistant  Attorney-General,  for  the  State. 


MOOHE  V.  STATE. 


21 


IIkxheksox,  J.  Appollnnt  was  convicted  of  being  nn  acces- 
sory to  murder  in  the  first  degree,  and  his  punishment  assessed 
at  confinement  in  the  penitentiary  for  life ;  hence  this  appeal. 

Ajipellant  assigns  a  nunilier  of  errors;  but,  according  to  the 
view  we  take  of  the  case,  there  is  but  one  assignment  that  re- 
quires notice.  The  indictment  contained  a  number  of  counts, — 
one  charging  appellant  as  a  principal,  one  charging  him  with 
1)eing  an  accomplice,  and  one  charging  him  with  being  an  acces- 
sory, lie  was  tried  and  convicted  under  the  count  which 
charged  the  murder  to  have  been  committed  by  E.  L.  Cady  and 
Lou  !Moore,  and  which  charged  him  with  being  an  accessoiy  to 
the  murder  so  committed  by  said  principals;  that  is,  it  charged 
him  with  knowing  that  the  said  Cady  and  Moore  had  committed 
said  offense,  and  that  thereaftei  he  wilfully  concealed  and  gave 
other  aid  to  the  said  Catly  and  ^Moore,  in  order  that  they  might 
evade  an  arrest  for  said  offense.  Appellant  filed  a  motion  in  the 
nature  of  a  motion  to  quash,  and  a  plea  in  abatement  to  said  in- 
dictment, setting  up  the  following  facts,  to  wit:  That  Lou 
Moore  was  his  brother,  and  that  therefore,  under  the  statute, 
he  could  not  be  an  accessory  as  to  him ;  and  that  E.  L.  Ca<ly  was 
dead,  having  died  before  he  was  ever  tried  for  this  offense,  and 
before  the  presentation  of  any  indictment  against  him.  The 
facts  set  up  were  admitted  by  the  State  to  be  true,  but  the  plea 
and  motion  to  quash  were  overruled  by  the  court,  to  which  ap- 
pellant excepted,  Avhich  appears  by  his  first  bill  of  exceptions. 
By  his  bill  of  exceptions  T^o.  7,  a]>pellant  further  objected  to  all 
testimony  in  regard  to  the  guilt  of  said  principals,  on  tiie 
grouiTdls  as  stated  in  his  former  bill.  This  was  also  overruled  by 
the  coiirt.  By  his  bill  Xo.  18,  appellant  asked  the  following  in- 
struction :  "You  are  instructed  that,  the  State  having  admitted 
that  the  defendant  Jack  ^Moore  is  a  full  brother  to  Lou  ^Moore, 
with  whom  he  is  charged  in  the  indictment  Avith  being  an  acces- 
sory, and  that  E.  L.  Cady,  the  principal  charged  in  the  in- 
dictment, died  Avhile  under  arrest  upon  the  charge  of  murder 
of  Addison  Pate,  and  before  the  presentation  of  the  indictment 
against  this  defendant,  and  the  State  having  elected  to  submit 
this  case  upon  the  fourth  count  of  the  indictment,  charging  this 
defendant  with  being  an  accessory  to  Lou  ]\loore  and  E.  L.  Cady 
in  the  murder  of  Addison  Pate,  you  will  find  the  defendant  not 


i  ■ 


1 

i  ■ 

■a_ 

■"Hi 

0') 


AMERICAN  CRIMINAL  REPORTS. 


guilty,  and  so  roturn  yovir  verdict."  This  was  refused  by  the 
crturt,  and  appellant  reserved  his  bill  of  exceptions.  So  it  would 
appear  that  appellant  has  thoroughly  and  completely  saved  the 
question  as  to  his  heing  an  accessory  under  the  facts  of  this  case. 

Article  89  of  the  Penal  Code  provides  "that  the  accomplico 
may  he  arrested  and  tried  and  punished  before  the  conviction 
of  the  principal  offender,  and  tlie  acquittal  of  the  principal  shall 
not  bar  a  prosecution  against  the  accomi)lice,"  etc.  Article  90 
provides  "that  the  accessory  may  in  like  manner  be  tried  and 
punished  before  the  principal,  when  the  latter  has  escaped ;  but 
if  the  principal  is  arrested  he  shall  be  first  tried,  and  if  acquit- 
ted, the  accessoi-y  shall  be  discharged."  Article  87  provides, 
among  other  things,  that  the  brother  or  sister  of  the  principal 
(iff(>nder  cannot  be  an  accessory  to  him.  This  last-mentioned 
article  effectually  disposes  of  the  prosecution  of  this  defendant 
as  an  accessory  to  his  brother,  Lou  ^Moore.  As  to  E.  L.  Cady, 
the  other  principal,  the  record  shows  that  he  is  dead ;  that  ho 
died  after  his  arrest  on  this  charge,  and  before  any  indictment 
found  against  him.  This  identical  question  came  before  the 
Supreme  Court  of  this  State  in  State  v.  McDaniel,  41  Tex.  229, 
article  90  was  construed,  and  it  was  there  held  that  the  escai)e  of 
the  principal  was  the  only  contingency  that  authorized  the  i)roKe- 
cution  and  conviction  of  an  accessory  without,  in  the  first  in- 
stance, the  trial  and  conviction  of  his  principal.  Wo  think  the 
reasoning  in  said  case  sound,  and  not  only  properly  construes 
our  statute  on  the  subject,  but  is  in  harmony  with  the  common- 
law  decisions  and  the  courts  of  other  States.  Kingsbury  v.  Slate 
(Tex.  Cr.  App.),  39  S.  W.  Rep.  3G5 ;  1  Whart.  Cr.  Law,  §§  237 
to  244,  inclusive;  Edivards  v.  State,  80  Ga.  127,  4  S.  E.  Rep. 
268;  Bay  v.  Slate,  13  Xcb.  55,  13  X.  W.  Rep.  2;  Holmes  v. 
Com.,  1  Casey,  222 ;  Starin  v.  People,  45  X.  Y.  333. 

As  stated  before,  it  is  not  necessary  to  discuss  other  questions, 
for  the  record  discloses  a  number  of  errors  committed  during  the 
trial,  as  the  views  above  expressed  effectually  dispose  of  this 
case.  The  judgment  is  accordingly  reversed,  and  the  cause  re- 
manded. 

Brooks,  J.,  dissents. 


1. 

2. 


■mw 


T^T^-^^f-T"  r  — ~ "  • 


WOOD  V.  STATR 


23 


Wood  v.  State. 

Texas  Court  of  Crim.  App. — 51  S.  W.  Rep.  235. 

Decided  May  10,  1899. 

Adultery:  Indictment — Variance. 

1.  The  language  "one  thousand  eight  hundred  and  nine  seven,"  in  an 

Indictment,  will  be  considered  to  mean  1897. 

2.  An  indictment  charging  adultery  "without  living  together,"  is  not 

sustained  by  proof  of  the  act  by  persons  living  together. 

Appeal  from  the  County  Court  of  Floyd. 
Appellant,  convicted  of  adultery,  appeals. 

J.  W.  Pndlt,  for  the  appellant. 
Jloht.  A.  John,  Assistant  iVttorney-General,  for  the  State. 

Brooks,  J.  Appellant  was  convicted  of  adultery,  and  her 
punishment  assessed  at  a  fine  of  $100,  and  she  appeals. 

A  motion  was  made  to  quash  the  indictment  on  the  ground 
that  it  alleges  the  date  of  the  commission  of  the  offense  as  "one 
thousand  eight  hundred  and  nine  seven,"  instead  of  what  was 
prohably  intended  as  "one  thousand  eight  hundred  and  ninety- 
seven."  We  think  this  is  not  sufficient.  Somcrville  v.  State,  fi 
Tex.  App.  438;  Thomas  v.  State,  2  Tex.  App.  294;  Witten  v. 
State,  4  Tex.  App.  70 ;  Hutto  v.  State,  7  Tox.  App.  44 ;  Slate 
V.  Earp,  41  Tex.  487 ;  State  v.  Wittiamson,  43  Tex.  502. 

We  notice,  however,  that  the  indictment  is  for  adultery  hy 
habitual  carnal  intercourse,  "without  living  together."  The  evi- 
dence shows  conclusively  carnal  intercourse  by  the  parties,  liv- 
ing together.  The  allegation  and  proof  on  this  question  must 
correspond.  It  does  not  do  so  in  this  case;  hence  we  are  con- 
strained to  reverse  the  judgment.  Powell  r.  State,  12  Tex.  App, 
239;  Eatidle  v.  State,  id.  250;  Burns  v.  State,  id.  394;  Ledbet- 
tcr  V.  State,  21  Tex.  App.  344,  17  S.  W.  Eep.  427;  Bird  v. 
State,  27  Tex.  App.  C3C.,  11  S.  W.  Rep.  041.  Our  able  assist- 
ant attorney  general  confesses  error  upon  this  question.  The 
judgment  is  reversed,  and  the  cause  dismissed. 

Note. — Statute  in  Georgia. — Defendant  was  indicted  for  committing 
adultery  with  a  "married  womQii."  The  statute  refers  to  "adultery,  or 
for  fornication,  or  adultery  and  fornication."  He  was  found  guilty 
generally,  but  it  appeared  from  the  evidence  that  he  was  a  "married 


1:1; 


24 


AMERICAN  CUIMINAL  REPORTS. 


man,"  but  that  the  woman  was  unmarried.  This  conviction  was  re- 
versed on  the  ground  that  the  statute  recognizes  three  grades  of  of- 
lenses;  that  while  a  married  man  might  be  guilty  of  adulter))  and  forni- 
cation with  an  unmarried  woman,  under  the  statute  he  would  not  bo 
guilty  of  simply  adulteri/,  this  being  the  offense  when  both  are  mar- 
ried.   Kondrick  v.  State,  100  Ga.  360,  28  S.  E.  Rep.  120. 

A  letter  as  evidence. — Defendant  was  on  trial  for  adultery;  it  was 
held  proper  lo  receive  In  evidence  a  letter  written  to  him  by  the  woman 
with  whom  the  offense  was  charged  to  have  been  committed,  the  letter 
having  been  received  and  read  by  him,  for  the  purpose  of  showing  the 
disposition  of  the  parties  toward  each  other.  State  v.  Butts,  107  Iowa, 
653   (1899). 

Where  the  statute  provided  that  prosecutions  for  adultery  could  only 
be  brought  by  the  husband  or  wife  aggrieved,  and  where  the  woman 
with  whom  the  alleged  offense  was  committed  and  her  husband  sep- 
arated,  and  were  divorced  subsequent  to  the  alleged  offense,  and  again 
were  remarried,  after  which  the  husband  secured  the  Indictment  of  the 
defendant.  It  was  urged  by  the  defendant  that  by  the  decree  of  divorco 
the  prosecutor  ceased  to  be  the  husband  of  the  woman  In  question,  and 
that  all  of  his  rights  as  husband  thereby  lapsed,  among  them  the  right 
to  institute  the  prosecution,  and  that  the  remarriage  should  be  re- 
garded as  a  totally  new  marriage,  and  that  he  stood  In  the  same  relation 
as  though  he  was  for  a  first  time  marrying  the  woman  subsequent  i  ^ 
such  conduct.  There  was  much  force  In  this  contention,  but  the  court 
decided  otherwise,  holding  that  the  term  "husband  or  wife"  referred  to 
the  relation  existing  at  the  time  of  the  offense  rather  than  to  the  time 
when  complaint  was  made.  State  v.  Smith,  108  Iowa,  440,  78  N.  W. 
Rep.  687  (1899). 


State  ,v.  Watsox. 


I 


20  R.  I.  354—39  Atl.  Rep.  193. 

Decided  January  12,  1898. 

Adultehy:  Indictment— Pleading— Former  conviction— Effect  of  vacat- 
ing a  decree  of  divorce, 

1.  One  obtaining  a  divorce  and  then  marrying  another  person  may  be 

convicted  of  adultery,  if  the  new  relations  are  continued  after  the 
decree  has  been  set  aside. 

2.  Defendant  should  plead  to  the  jurisdiction  before  he  pleads  not 

guilty. 

3.  A  former  conviction  with  partial  punishment  for  bigamy  under  a 

defective  Indictment  is  no  bar  to  an   Indictment  for   adultery. 
Also  the  offenses  are  distinct  and  separate. 

4.  Motions  to  quash  are  addressed  to  the  discretion  of  the  court. 

5.  Matters  outside  of  the  record  should  be  set  up  by  plea  instead  of 

by  motion  to  quash. 

6.  It  is  not  essential  In  an  indictment  for  adultery  that  the  particeps 

criminis  should  be  included. 


STATE  V.  WATSON. 


25 


Frnncis  C.  Watson,  convicted  of  adultery,  petitions  for  a  now 
trial,  etc.     Denied. 

The  Ailoi-ney-Gcncral,  for  the  State. 

J,  E.  Dcnnison  and  G.  11.  McKenna,  for  the  defendant. 

TiLLixoiTAST,  J.  The  defendant,  who  has  been  convicted  of 
the  crime  of  adultery  ■with  one  Mary  A.  Watson,  now  jietitions 
for  a  new  trial  on  numerous  grounds,  the  substance  of  which, 
so  far  as  we  are  able  to  understand  them  from  the  confused  state- 
ment thereof,  is  that  the  verdict  is  ajijainst  the  evidence,  and  that 
tlic  court  erred  in  certain  rulings  which  will  be  hereinafter  men- 
tioned. 

Tlie  uncontradicted  testimony  offered  by  the  State  shows  that 
the  defendant  lived  with  the  said  ^lary  A.  Watson  as  his  wife 
for  nearly  six  years,  during  two  of  Avhich  he  lived  with  her  in 
Ilo]>kinton,  in  this  State,  and  that  he  had  three  children  by  her. 
While  tlie  defendant  does  not  attempt  to  deny  that  he  lived  with 
.■iaid  Mary  as  bis  wife,  yet  he  contends,  and  sets  up  as  a  defense 
to  the  indictment,  that  such  cohabitation  was  not  adnlteroiis, 
lu'cause,  as  he  alleges,  he  had  obtained  a  divorce  from  his  former 
wife,  and  that  he  was  lawfully  married  to  said  !Mary  at  that 
tiiiio;  and  the  vital  question,  therefore,  is  as  to  the  validity  of 
said  divorce.  The  facts  are  these:  In  1870  the  defendant  was 
lawfully  married  to  ^felinda  Buddington,  in  the  State  of  Con- 
!i('('ticnt.  On  the  21st  day  of  ^fay,  18S9,  the  superior  court  of 
Windham  county.  Conn.,  upon  a  petition  filed  by  him,  grante<l 
a  decree  divorcing  him  from  his  said  Avife.  On  the  2.'3d  day  of 
Afay,  18S0,  two  days  after  the  said  decree  was  granted,  the  de- 
fendant married  said  ^Afary  A.  Watson,  in  Sterling,  Conn.,  and 
suhsfinientlv  lived  with  her  as  his  wife,  as  aforesaid.  Shortly 
after  said  divoi'ce  was  granted,  the  respondent  therein  filed  a  pe- 
tition in  said  superior  court,  asking  that  said  decree  be  set  aside, 
and  the  case  re-entered  upon  the  docket,  which  motion,  after  no- 
tice and  hearing,  was  on  the  18th  day  of  June,  1889,  granted, 
the  court  finding  that  the  respondent  therein  was  prejudiced  by 
the  decree;  that  she  had  a  good  defense  to  the  action,  and  was 
])rcvented,  by  mistake  and  accident,  from  appearing  to  oppose 
the  same.  The  court  also  found  that  said  respondent  bad  em- 
ployed counsel  to  oppose  the  granting  of  the  petition  for  divorce, 


20 


AMERICAN  CRIMINAL  RKPORTS. 


i  I 


niicl  tlmt  hor  counsel  liad  nclunlly  npponml  to  dcfi-nd  tlio  suit, 
Imt  had  not  entered  his  nppenninco  upon  the  docket;  nnd  also 
tlint  the  petitioner  know  that  tlie  responih-nt  had  so  appeared. 
In  view  of  these  facts,  the  c(.urt  (Doufilas,  J.)  chargv<l  the  jury 
in  the  case  at  bar  that  sni.l  Melin(hi  Watson  cmtinued  to  he  tho 
wife  of  tliis  defendant  frona  the  time  of  said  first-mentioned 
marriage,  in  1870,  except,  at  nu.st,  during  tho  interval  from 
the  21st  of  May,  1881),  to  the  18th  of  June,  188U;  and  tirnt 
what  tho  relations  of  tho  parties  were  under  the  law  of  Con- 
necticut during  tl\e  term  at  which  the  decree  of  divorce  was  en- 
tcied  it  was  not  necessary  for  the  jury  to  consider,  as  it  did  not 
atfect  the  case. 

The  defendant's  counsel  requested  the  court  to  charge  as 
lows:  (1)  ''That  a  man  who  in  good  faith  marries  a  woman 
when  he  was  divorced  fron»  his  former  wife,  and  tlie  divorce  was 
helieved  by  both  of  them  (parties  to  the  second  marriage)  to  ho 
valid  and  conclusive,  he  cannot  be  convicted  of  adultery  with 
her  (second  wife)  if  neither  he  nor  she  were  married  persons, 
but  single,  at  the  time  of  their  nmrriage  to  each  other,  unless 
they  had  been  divorced  from  each  other  since  their  marriage, 
and  before  the  alleged  adultery."  (2)  "After  a  divorce  from 
a  former  wife,  a  man  docs  not,  by  cohabiting  as  man  and  wifo 
under  his  second  marriage,  or  by  having  carnal  knowledge  of  tho 
bodv  of  his  second  wifo,  commit  the  crime  of  adultery.    But  tho 

».■  I 

indictment  should  allege  the  second  marriage,  and  all  the  other 
facts  constituting  bigamous  cohabitation,  if  the  second  marriage 
took  place  in  another  State ;  and,  if  the  jury  find  these  facts  to 
be  time,  there  is  a  variance  between  the  evidence  and  the  plead- 
ings, and  verdict  should  bo  'Not  guilty.'  "  In  reply  to  these  re- 
quests the  court  said :  "I  understand  the  first  request  to  apply  in 
this  way:  That  if,  during  the  time  that  the  decree  of  divorce 
was  in  force,— *hat  is  to  say,  from  ^May  21,  1889,  to  the  18th 
of  June,  1889, — that  on  the  23d  of  May,  when  the  cer  niony  of 
maiTiage  was  gone  through,  these  parties  were  not  living  in 
adultery."  "The  second  is  that,  after  the  divorce  from  tho 
former  wife,  the  man  does  not,  by  cohabiting  as  man  and  wifo 
under  his  second  marriage,  or  by  having  carnal  knowledge  of  the 
l)0(ly  of  his  second  wife,  commit  the  crime  of  adultery.  That  I 
refuse."    We  do  not  see  that  tho  defendant  has  any  ground  to 


STATE  V.  WATSON. 


27 


Cdinpliiiii  of  this  instruct  ion.  After  tlio  tlocroo  of  divorce  wna 
Hct  nside  in  manner  aforesaid,  it  is  dear  that  the  first-mentioned 
nianiage  was  in  full  force;  and  therefore  the  defendant  was  a 
married  iium  and  had  a  wife  living  at  the  time  of  the  coniniis- 
sioii  of  tiie  alleged  crime  of  adultery,  if,  indeed,  such  was  not 
tlie  ('iis(^  at  the  date  of  his  second  marriage. 

It  is  evident,  from  an  inspection  of  the  record  of  the  divorce 
{jroiccdiiig-s,  that  the  Connecticut  court  was  imposed  upon  and 
deceived  by  the  defendant  in  connection  with  the  granting  of 
Piiid  decree, — in  short,  that  the  decree  was  ol'tained  by  fraud; 
iuid,  upon  this  fact  being  shown  by  the  resp()n<lent  in  that  ease, 
8aid  court  promptly  righted  the  wrong  thus  perpetrated,  and 
] (laced  the  parties  to  the  suit  where  they  were  before.  That,  as 
a  general  proposition,  C4»nrts  have  ]K'\ver  to  set  aside,  vacate, 
iiKMJit'y,  or  amend  their  judgments  for  goc»d  cause,  no  one  will 
(|uestion;  such  jiower  being  iidierent  in  the  court,  as  a  part  of 
irs  necessary  machinery  for  the  due  a<lministration  of  justice. 
And  whenever  a  judgment  is  obtained  by  the  fraud  of  the  party 
in  whose  favor  it  is  rendered,  and  the  other  party  is  not  impli- 
cated therein,  of  course  this  constitutes  a  good  and  sutiicient 
cause  for  vacating  the  judgment.  Decrees  in  divorce  suits  arc 
not  exempted  from  the  operation  of  this  rule,  although  conns 
are  more  reluctant  to  disturb  a  decree  of  divorce,  especially  after 
a  second  marriage  involving  the  interest  of  third  persons.  A 
full  discussion  of  the  general  question  involved  may  be  found  in 
the  cases  cited  in  2  Bish.  !Mar.,  Div.  &  Sep.,  §  1552,  note  3; 
also,  1  Jilack,  Judgm.,  §  320.  In  Brnihtrcct  v.  Insurance  Co., 
V,  Suinn.  (i04.  Story,  J.,  says:  "I  know  of  no  case  where  fraud, 
if  established  by  competent  proofs,  is  not  sufficient  to  overthrow 
any  judgment  or  decree,  however  solemn  nniy  be  its  form  and 
]»romulgation."  In  Adams  r.  Adams,  51  X.  11.  38S,  which  is  a 
leading  case  upon  the  subject  imder  consideration,  Bellows, 
C.  J.,  says:  "This  doctrine  in  regard  to  impeaching  judgments 
and  decrees  for  fraud  has  been' applied  in  numerous  cases  to  de- 
crees in  divorce  suits  and  suits  for  rmllity  of  marriage,  and  the 
Aveight  of  authority  is  greatly  in  favor-  of  such  application. 
T'pon  principle,  there  is  no  solid  gi'ound  for  any  distinction  be- 
tween decrees  in  divorce  suits  and  other  judgments ;  or,  if  there 
be  any,  it  is  to  be  found  in  the  much  greater  danger  of  fraiid 


28 


AMERICAN  CRIMINAL  REPORTS. 


!l;;l    '■     -{ 


and  imposition  in  divorce  oases,  as  compared  with  others;  thus 
adding  largely  to  the  necessity  and  importance  of  presen'inj? 
the  ])M\ver  to  correct  or  vacate  decrees  that  have  been  obtained  by 
fiand  and  imposition.  Accordingly,  it  is  laid  do\ni  in  llirli. 
Mar.,  Div.  &  Sep.,  §  GOO,  that  if  a  tribunal  has  been  imposed 
npon,  and  in  consequence  of  the  fraud  n  judgment  of  divorce 
has  l)een  wrongfully  rendered,  it  may  vacate  the  judgment, 
when,  npon  a  sunmiary  proceeding,  it  is  made  cognizant  of  the 
fraud."  To  the  same  eifect  are  Edson  v.  Edson,  108  ^^Fass.  500 ; 
Bomsfa  V.  Johnson,  38  .^^inn.  230;  and  Wisdom  v.  Wisdom, 
24  Xeb.  551.  It  is  clear,  then,  that,  whatever  the  status  of  the 
defendant  was  l)etween  the  time  of  the  granting  of  said  decree 
of  divorce  and  the  annulment  thereof,  yet  the  said  :^[elin<la  Wat- 
son was  his  lawful  wife  during  the  time  covered  by  the  indict- 
ment in  this  case. 

The  next  error  alleged  to  have  been  committed  by  the  presid- 
ing justice  is  that  he  overruled  the  defendant's  plea  to  the  juris- 
diction of  the  court.  The  record  shows  that  on  ^farch  2:>,  ISOO, 
the  defendant  was  arraigned  and  pleaded  "Xot  guilty;"  and 
that  on  ]\ray  19,  1S9G,  without  haviiig  asked  or  obtain(  d  jiermis- 
sion  to  retract  this  plea,  and  without  permission  to  file  any 
further  plea,  he  filed  a  plea  to  the  jurisdiction,  as  ho  styles  it 
(although  in  fact  it  is  a  plea  of  anircfois  convict,  which  is  a 
plea  in  bar),  in  which  ho  sets  up  former  jeopardy  and  former 
punishment  for  the  same  or  a  kindred  offense.  On  June  S, 
1896,  the  defendant  also  filed  a  motion  to  dismiss  tlie  indict- 
ment for  want  of  jurisdiction,  on  the  ground  of  former  jeopardy. 
On  .Time  10th  he  filed  what  he  denominates  as  a  "^fotion  to 
quash,  in  the  nature  of  a  substantial  demurrer,"  on  the  gi-ound 
that  the  indictment  charges  no  offense  known  to  the  law,  and  for 
various  other  reasons  not  appearing  of  record.  On  the  same 
day  he  made  a  motion  for  leave  to  withdraw  his  plea  of  ''Xot 
guilty,"  which  was  denied  by  the  court,  whereupon  the  trial  of 
the  case  proceeded,  and  the  jury  found  the  defendant  guilty. 

First,  then,  as  to  said  plea  to  the  jurisdiction.  This  plea  was 
filed  too  late.  The  rules  of  criminal  pleading  recpiire  that  a 
plea  to  the  jurisdiction,  like  a  demurrer,  plea  in  abatement,  jdea 
in  bar,  or  any  other  special  plea  whatever,  shall  precede  the  ])le!i 
of  not  guilty.    If  the  special  plea  is  determined  against  the  de- 


STATE  V.  WATSON. 


29 


(    1 


fpii<lniif,  the  practice  is  to  then  allow  him  to  plead  over.    State 
r.  Eihjciion,  12  R.  I.  108.    Mctrod-cr,  after  a  plea  of  not  guilty, 
tlio  tlefendant  cannot  file  any  other  plea  withont  leave  of  court. 
Com.  v.  Blake,  12  Allen,  1S8;  Com.  v.  Lannan,  13  Allen,  5G3. 
\Ve  have,  however,  examined  said  plea  to  the  jurisdiction,  but 
d(i  not  find  that  it  woidd  have  heen  of  any  avail  if  it  had  been 
filed  in  sonson.    It  sets  out,  or  attempts  to  set  out,  a  former  ?on- 
vicfinn  of  the  defendant  for  bifijamons  cohabitation  with  the 
siiifl  .Mary  A.  Wats(jn,  the  indictment  in  which  case  covers  and 
iiichides  the  same  time  on  which  the  offense  is  laid  in  the  one 
ix'tnre  us.     It  also  sets  out  that  the  defendant  was  imprisoned 
f(ir  six  months  and  ten  days  for  said  offense,  and  lie  refers  to 
tlie  record  of  said  case  in  support  of  his  alleiration.     As  that 
case  was  bef<»re  this  division  on  Juihcfis  corpus,  Ave  can  properly 
take  notice  of  the  facts  therein,  and  they  are  these:   The  defend- 
ant was  convicted  of  bi^imous  cohabitation  with  said  ^lary  A. 
Watson,  as  alleged  in  the  plea,  and  was  sentenced  therefor  to 
inipi'isonment  for  the  term  of  four  years.     Some  time  after  ho 
was  committed,  he  obtained   a  writ  of  hahcas  corpus,  on  the 
ground  that  the  indictment  stated  no  offense  known  to  the  law ; 
and,  after  hearing  thereof,  this  court  decided  that  the  indict- 
ment  was   fatally   defective,    and   ordered   the   defendant   dis- 
charged from  imprisonment.     See  In  re  Watson,  Pet'r,  19  R.  I. 
:>4i*.     It  will  at  once  be  seen,  therefore,  that  said  "Plea  to  the 
jurisdiction,"  so  called,  ii  without  any  force  or  validity.     The 
indictment  on  which  he  was  tried,  convicted,  and  sentenced  was 
not  oidy  for  another  and  distinct  offense  from  that  with  which 
he  is  charged  in  the  indictment  now  before  us,  but,  by  reason 
of  being  fatally  defective  in  the  manner  aforesaid,  was  a  mere 
nullity.      "Where   there   is   no  jurisdiction,"   as   saitl   by   ^Fr. 
Wharton  in  his  work  on  Criminal  PI.  and  Pr.  (0th  Ed.),  §  507, 
"or  where  the  indictment  is  defective,  even  in  a  capital  case,  it 
is  agreed  on  all  sides  the  defcMulant  has  never  been  in  jeopardy, 
and  consecpiently,  if  judgment  be  arrested,  a  new  indictment  can 
be  preferred,  and  a  new  trial  instituted,  withont  violation  of  the 
constitutional  limitation.     Even  partial  endurance  of  punish- 
ment under  a  defective  indictment  will  be  no  bar  when  the  pro- 
ceedings are  reversed  on  the  defendant's  motion,  although  it  is 
otherwise  when  judgment  is  unreversed.     But  a  judgment  er- 


■«l 


«:i 


30 


AMERIC.^N  CRIMINAL  REPORTS. 


B 


1       '  iii 


ronroiisly  arrested  on  a  good  indiotmont  may  be  a  hnr."     Soo 
also  KohJheiwcr  v.  Staia,  39  Miss.  S-tS,  cited  by  counsel  for  do- 
fendant.    :Moreover,  a  plea  of  autrefois  convict  must  allege  that 
the  two  offenses  arc  the  same;  for  when  the  offenses  charged  in 
the  two  indictments  are  distinct,  though  committed   concur- 
rently, they  are  separately  prosecutable.     Thus,  the  fact  that  a 
person  has  been  convicted  of  keeping  a  drinking  house  and 
tippling  shop  is  no  bar  to  an  indictment  for  presuming  to  be  a 
common  seller,  although  both  indictments  cover  the  same  period 
of  time,  and  are  supported  by  the  same  acts  of  illegal  sale.    Slaia 
r.  Inncss,  53  ^Ic.  530.    ]'dackstone  says  that  the  pleas  of  former 
acquittal  or  former  conviction  must  be  upon  a  prosecution  for 
the  identical  act  and  crime.    4  ?>!.  Comm.  330.    And  Chief  Jus- 
tice  Shaw  says  that,  in  considering  the  i<lentity  of  the  offense, 
it  must  appear  by  the  i^lea  that  the  offenses  charged  in  both 
cases  are  the  same  in  law  as  well  as  in  fact,  and  that  the  plea 
will  be  vicious  if  the  offenses  charged  in  the  two  indictments  be 
perfectly  distinct  in  point  of  law,  however  nearly  they  may  be 
connected  in  fact.    Com.  r.  Ilchy,  12  Pick.  400;  Rice,  C"r.  Ev., 
§  385,  and  cases  cited;  Com.  v.  Puinnm,  1  Pick.  130,  at  page 
140. 

As  to  the  defendant's  motion  to  dismiss,  it  is  sufficient  to  say 
that  it  is  based  upon  the  same  ground  as  the  plea  which  we  have 
just  passed  upon,  and  hence  requires  no  further  consideration. 

The  defendant's  "Motion  to  quash,  in  the  nature  of  a  substan- 
tial demurrer,"  was  properly  overruled.  A  motion  to  quash  an 
indictment  or  other  criminal  process  is  addressed  to  the  discre- 
tion of  the  trial  court,  and,  as  said  by  Ames,  C.  J.,  in  l^htfr  r. 
McCarlhy,  4  Tl.  I.  84,  "is  never  granted  unless  by  this  sh'irt 
dealing  the  ends  of  justice  can  be  as  well  attained,  and  the  rights 
and  equities  of  the  parties  as  well  observed  as  by  allowing  the 
cause  to  go  on  to  its  termination  in  the  accnstomeil  mode."  Sc(» 
also  Chit.  Cr.  Law,  300-303.  We  have,  however,  examin(>d  th(> 
indictment  in  the  case  at  bar,  and  find  that  it  is  in  the  ordinary 
form,  and  clearly  and  technically  sets  oiit  and  charges  the  crime 
of  adidtery. 

As  to  that  part  of  the  motion  which  sets  up  matters  dehors 
the  record,  we  reply  that,  in  the  first  place,  it  sets  out  no  ground 
of  defense,  and,  in  the  second  place,  even  if  it  did,  the  matter 


slioul 
the  1 
Ifoiil 

13  li 

'Y\\ 
that 
fend] 
quenj 

is  co| 
indie 

ties 
to  re 
orde 
heri' 
over 


PEOPLE  V.  ROBERTS. 


ol 


slioul"!  have  boon  set  up  by  plea  and  not  by  motion  to  qnasli,  as 
tlic  latter  can  be  gi'anted  only  for  defects  apparent  on  the  record. 
Ifoii'Jdnd  V.  School  Dist.,  15  II.  I.  184.  See  also  State  v.  Dninj, 
13  K.  I.  540;  Stale  v.  Maloney,  12  E.  I.  251;  Whart.  Cr.  PI. 
&rrac.,  §§  3SG-88. 

The  only  remaining  motion  to  be  considered  in  this  case  is 
that  in  arrest  of  judgment,  which  is  merely  a  rehash  of  the  de- 
fendant's "Plea  to  the  jurisdiction,"  so  called,  and  of  his  sidise- 
quent  motions  Avhieh  we  have  already  considered.  The  motion 
is  coupled  with  an  argument  to  the  effect  that  the  defendant,  if 
indictable  at  all,  should  have  been  indicted  for  some  other  of- 
fense than  that  of  adultery,  and  also  that  one  of  the  guilty  par- 
ties cannot  be  indicted  without  the  other.  It  woiild  not  seem 
to  require  a  very  thorough  knowledge  of  criminal  pleadings  in 
order  for  counsel  to  avoid  mistakes  of  this  sort,  as  well  as  those 
hoveiid)efore  pointed  out.  The  motion  in  arrest  of  judgment  is 
overruled. 

We  have  examined  the  numerous  other  grounds  contained  in 
the  defendant's  petition  for  new  trial,  but  do  not  find  that  they 
are  entitled  to  any  serious  consideration.  Petition  denied,  and 
case  remitted  to  the  Common  Pleas  Division  for  sentence. 


\ 


People  v.  RonERTs. 

122  Cal.  377—55  Pac.  Rep.  137. 

Decided  November  19,  1898. 

Auni:  Instruction  assuming  a  fact  as  proven — Examination  of  wit- 
nesses. 

1.  It  devolves  upon  the  People  to  prove  beyond  all  reasonable  doubt 
that  the  accused  Is  guilty  as  charged,  and  no  burden  rests  on  him 
to  prove  an  alibi. 

2  It  is  reversible  error  for  the  court,  in  instructing  the  Jury,  to  as- 
sume that  it  was  "proven  that  the  crime  was  committed." 

3.  Overruling  objections  to  questions  that  go  more  to  form  than  sub- 
stance is  not  reversible  error,  if  no  injustice  is  done. 

Appeal  from  the  Superior  Court  of  Lassen  County;  Hon. 
F.  A.  Kelly,  Judge. 

Appellants,  being  convicted  of  grand  larceny,  ap\oal.  Ee- 
vcrsed. 


«ii!       ::V.    !l- 


32 


AMERICAN  CRIMINAL  REPORTS. 


Goodwin  tC-  Goodwin  and  If.  il/.  Boanlman,  for  the  appel- 
lants. 

ir.  F.  Fitzgerald,  Attorney-General,  for  the  Peoi^le. 

Garoutte,  J.    Defendants  have  heen  oonvieted  of  the  crime 
of  grand  larceny,  and  appeal  from  the  jndgment  and  order  de- 
nyinc;  their  motion  for  a  new  trial.     Tliey  introduced  evidence 
tending-  to  establish  an  alibi,  and,  as  bearing  upon  this  branch  of 
the  case,  the  court  gave  the  jury  the  following  instruction :  "You 
are  instructed  that  if  the  defendant,  or  the  defendants,  was  at 
some  other  place  at  the  time  it  is  alleged  or  proven  that  the  crime 
was  committed,  it  is  what,  in  law,  is  called  an  'alihi.'     When 
satisfactorily  proven,  it  is  a  good  defense  in  law.     AVhether  or 
not  an  alibi  was  proven  and  established  to  your  satisfaction  in 
this  case  is  a  fact  for  you  to  decide  from  all  the  evidence  intro- 
duced before  you;  and  if  you  believe  that  the  defendants,  or 
either  of  them,  was  not  present  at  the  time  it  was  alleged  or 
proven  that  tlie  crime  was  committed,  and  therefore  could  not 
have  committed  the  crime  charged  in  the  information,  and  did 
not  aid  or  abet  in  its  commission,  then  you  should  lind  him  or 
tliem  not  guilty."    The  foregoing  instruction  is  attacked  by  de- 
fendants.    It  is  first  claimed  that  the  instruction  is  errone(nis 
in  assuming  as  a  fact  that  the  larceny  was  proven.     Under  tlie 
constitution  of  the  State,  a  judge  may  state  to  the  jury  what 
the  evidence  introduced  at  the  trial  is,  ])ut  the  power  there 
granted  gives  him  no  right  to  declare,  as  a  matter  of  law,  that 
certain  facts  are  established  by  the  evidence.     It  follows  that 
the  contention  of  defendants  in  this  regard  is  well  founded.    Ihit 
the  most  serious  objection  to  the  instruction  is  presented  in  the 
fact  that  it  assumes  throughout  that  an  alibi  is  a  matter  of  de- 
fense, and  the  jury  are  told  that  it  must  be  established  to  their 
satisfaction.    AMien  a  jury  is  told  that  any  particular  fact  must 
be  established  to  their  satisfaction,  such  statement  can  only  mean 
that  such  fact  must  be  established  at  least  by  a  preponderance 
of  evidence;  yet  there  is  no  such  burden  cast  upon  a  defendant 
charged  with  a  crime,  except  in  certain  particular  instances, 
wliich  are  in  no  sense  presented  here.     It  is  for  the  People  to 
make  a  case  against  the  defendant  beyond  a  reasonable  .lonbt, 
and  the  element  of  alibi  is  included  in  the  case  which  the  law 


PEOPLE  V.  FONG  AH  SING. 


33 


tleinands  the  People  to  make  out,  equally  with  all  other  parts 
of  it.  If  the  evidence  offered  by  dofondanta  tended  to  establish 
an  alihl  to  the  extent  that  it  was  sufficient  to  raise  a  reasonable' 
doubt  in  the  minds  of  the  jurors  as  to  defendants'  guilt,  then 
those  defendants  should  have  been  acquittcnl.  It  is  thus  aj)- 
paront  that  the  alibi,  to  be  efficacious  to  a  defendant,  need  not 
be  "satisfactorily  proven,"  and  need  not  be  established  to  the 
satisfaction  of  the  jury. 

It  is  next  insisted  that  error  was  committed  in  allowing  cer- 
tain (piestions  to  be  asked  of  witnesses  who  were  called  for  im- 
peachment purposes.  The  evidence  of  these  witnesses  bore  upon 
tlie  general  reputation  for  truth,  honesty,  and  integrity  of  cer- 
tain witnesses  produced  by  the  defendants.  The  objections  here 
insisted  upon  go  more  to  form  than  to  substance.  There  is  no 
rigid,  inflexible  rule  to  l>e  followed  by  counsel  in  the  form  of  the 
(piestions  to  be  addressed  to  witnesses  when  testifying  to  general 
reputation  as  bearing  upon  the  question  of  veracity.  And  any 
deviation  from  the  general  course  to  be  followed,  as  marked  out 
by  the  decisions  of  this  court,  will  not  be  held  reversible  error, 
unless  those  deviations  have  resulted  in  some  injustice  to  the 
defendant.    In  this  case  we  find  nothing  of  the  kind. 

For  the  foregoing  reasons  the  judgment  and  order  are  re- 
versed, and  a  new  trial  ordered. 

We  concur:   Habkisox,  J.,  Van  Fleet,  J. 


People  v.  Fono  Aii  Sino. 


64  Cal.  253—28  Pac.  Rep.  233. 

Decided  October  26,  1883. 

Alibi:  Dying    declarations. 

1.  Proof  of  an  alibi  is  as  much  a  traverse  of  the  matters  charged  as 

is  any  other  defense. 

2.  A  reasonable  doubt  as  to  whether  the  defendant  was  present  at  the 

time  and  place  of  the  alleged  crime  is  suflScient  for  an  acquittal. 

3.  It  is  error  In  rn  instruction  to  say,  "If  the  jury  find  the  defendant 

to  have  been  at  another  place."  etc.,  because  It  infers  that  the  de- 
fendant was  required  to  prove  his  absence. 

4.  Evidence  of  dying  declarations  should  be  confined  to  the  fact  of 

the  homicide,  and  not  extended  to  prior  acts. 
VouXI-3 


1^ 


i!  m 


3^  AMERICAN  CRIMINAL  REPORTS. 

Appeal  from  the  Superior  Court  of  San  Francisco.    Reversed. 

L.  Qvinl,  for  tlio  appellant. 

The  AUorncy-Gt'neral  for  the  People. 

Ross,  J.  The  dcfenilant  was  charged  with  the  crime  of  mur- 
der. Ilis  defense  was  that  of  olihi.  he  claiming  that  at  the  time 
the  deceased  was  killed  ho  (defendant)  was  at  certain  rooms 
about  three  blocks  distant  from  where  the  murder  was  commit- 
ted. Upon  that  question  the  evidence  was  conflicting,  and  u])on 
that  state  of  facts  the  defendant,  through  his  counsel,  requested 
the  court  to  charge  the  jury  as  follows:  "Whilst  the  prosecution 
must  establish  beyond  a  reasonable  doubt  the  guilt  of  the  de- 
fendant, it  is  not  incumbent  on  the  defendant  to  prove  an  alibi 
beyond  a  reasonable  doubt.  Though  the  evidence  offered  to  es- 
tablish an  alibi  falls  short  of  the  weight  of  moral  certainty  as 
to  the  existence  of  the  alibi,  yet  if  it  leave  in  the  minds  of  the 
jury  such  a  doubt  or  uncertainty  that,  taken  by  itself,  they 
could  not  find  for  or  against  the  alibi,  they  are  bound  to  carry 
such  doubt  into  the  case  of  the  prosecution,  and  to  array  it  there 
as  an  element  of  the  reasonable  doubt,  beyond  which  the  prose- 
cution must  establish  giiilt.  The  defendant  is  entitled  as  much 
to  the  benefit  of  such  doubt  as  to  any  other  doubt  raised  by  the 
evidence ;  and  if  its  weight,  alone,  or  added  to  that  of  any  other, 
be  sufficient  to  reduce  belief  in  their  minds  as  to  the  defendant's 
guilt  to  a  reasonable  dou1)t,  they  must  acquit."  This  instruc- 
tion the  court  below  refused  to  give,  but  instead  gave  the  jury, 
as  the  law  upon  the  subject  of  alibi,  the  following:  "If  the  jury 
find  the  defendant  to  have  been  at  another  place, — as,  for  in- 
stance, in  the  society's  rooms,  which  have  been  spoken  of  in  the 
evidence  at  the  time  of  this  alleged  shooting, — and  if  his  being 
there  then  creates  a  reasonable  doubt  of  his  having  been  present 
at  the  place  of  the  alleged  crime  at  the  time  of  its  alleged  com- 
mission, he  should  have  the  benefit  of  that  reasonable  doubt, 
and  be  acquitted."  The  instruction  requested  was  substantially 
correct,  and  should  have  been  given.  The  charge  given  was  in- 
correct, and  should  not  have  been  g^ven.  The  commission  of  a 
criminal  offense  implies,  of  course,  the  presence  of  the  defendant 
at  the  necessary  time  and  ])lace.  Rroof  of  an  alibi  is,  therefore, 
as  nmch  of  a  traverse  of  the  crime  charged  as  any  other  defense; 


PEOPLE  V.  FONG  AH  SING. 


35 


I 


.51 
I 


anrl  proof  tonding  to  estnblish  it,  though  not  clear,  may  ncver- 
theloss,  Avith  tlio  othor  facts  of  the  case,  raiso  clonbt  enoii!:;h  to 
])ro(hico  an  acquittal.  A  reasonable  floul)t  of  the  defendant's 
]n'csence  at  the  time  and  place  necessary  for  the  conimis^iion  of 
llie  crime  would  seem  necessarily  to  raise  a  reasonable  doubt  of 
his  commission  of  it.  But,  according  to  the  charge  of  the  court 
bclnw,  the  defendant  was  not  to  liave  the  benefit  of  any  doubt  in 
regard  to  the  alleged  alibi,  unless  the  jury  should  find  as  a  fact: 
that  he  was  at  another  place  than  the  place  of  shooting  when  tlie 
sliooting  occuri'cd.  It  is  obvious  that  the  finding  of  that  fact 
would  itself  have  established  the  alibi,  and  that  would  have 
ciidod  the  case  of  the  prosecution.  V»x\t  proof  tending  to  estab- 
lish an  alibi,  though  insufficient  of  itself  to  establish  that  fact, 
is  not  to  be  excluded  from  the  case.  Whatever  d<mbt,  if  any, 
such  testimony  may  raise  in  the  minds  of  the  jurors,  is  for  their 
('(iiisidcration  ;  and  if  its  weight,  alone,  or  added  to  that  of  other 
evidence  in  the  case,  bo  sufficient  to  reduce  belief  in  their  minds 
as  to  the  defendant's  guilt  to  a  reasonable  doubt,  they  should  ac- 
quit; for  in  every  criminal  case,  when  all  the  proof  is  in,  the 
final  question  for  the  jury  is,  arc  all  the  essential  averments  of 
the  indictment  proved  beyond  a  reasonable  doubt? 

The  dying  declaration  of  the  deceased  was  properly  admitted 
in  evidence,  but  the  declaration  included  some  matter  foreign 
to  an  instrument  of  that  nature,  and  which  shoiild  have  been  ex- 
chided  by  the  court  below  from  the  consideration  of  the  jury. 
Wc  allude  to  the  following  statement  of  the  declarant:  "I  don't 
know  any  reason  that  Fong  Ah  Sing  had  for  shooting  me,  mi- 
less  it  was  that  a  few  days  before  the  shooting  T  was  bathing  my 
feet  up  stairs  over  a  room  in  which  Fong  Ah  Sing  was  sitting, 
and  I  spilled  a  little  water  on  the  floor,  and  some  of  it  leaked 
through  the  floor  and  fell  upon  Fong  Ah  Sing.  Fong  Ah  Sing 
Avas  very  angry  thereat,  and  told  the  proprietor  of  the  house  that 
I  nnist  apologize,  and  make  him  some  present,  to  prevent  bad 
hick  coming  upon  the  house.  The  proprietor  did  make  some 
little  present  to  Fong  Ah  Sing,  and  I  supposed  the  matter  was 
settl(Kl."  Dying  declarations  arc  restricted  to  the  act  of  killing, 
and  to  the  circumstances  immediately  attending  it  and  forming 
a  part  of  the  res  gcslw.  "\Mien  they  relate  to  former  and  distinct 
transactions  they  do  not  come  within  the  principle  of  necessity 


mmm 


i! 


1      tVv   .  ] 


86 


AMERICAN  CRIMINAL  REPORTS. 


on  which  such  dcchirations  arc  received.  Wlmrt.  Crim.  Ev., 
§  278;  1  Grccul.  Ev.,  §  15G;  State  v.  Draper,  G5  Mo.  3-35; 
Lciber  v.  Com.  9  Bush,  11;  Moses  v.  State,  11  Humph.  232; 
State  V.  Shelton,  2  Jones  (X.  C),  300;  Nelson  v.  State,  7 
liuniph.  542;  Uacl-ctt  v.  People,  54  Barb.  370.  Judgment  and 
onler  reversed,  and  cause  renumded  for  a  new  trial. 

]ireKixsTRy,   Shakpsteix,  McKek,  Mykick,   and  Tiiobn- 
Tox,  JJ.,  concurred. 


SiioE:krAKEK  V.  Territory  of  Oklahoma. 

4  Okl.  118—43  Pac.  Rep.  1059. 

Decided  in  1896. 

Alibi:  Instructions  regarding  burden  of  proof. 

It  is  reversible  error  to  Instruct  the  jury  that  the  burden  Is  on  the 
defendant  to  prove  an  alibi,  and  that  such  proof  must  show  that 
defendant  could  not  have  been  present  at  the  alleged  crime. 

Appeal  from  the  District  Court  of  Kingfisher  County;  l^\c- 

Atee,  Judge. 

Appellant  was  indicied  in  Blaiuo  county  for  murder,  and 
tried  upon  change  of  venue  in  Kingfisher  county,  was  there  con- 
victed and  sentenced  to  the  penitentiary  for  life,    lleversod. 

Buchner  t&  Son,  for  the  appellant. 

C.  A.  Galbraith,  Attorney-General,  for  the  appellee. 

BiERER,  J.  The  appellant  has  assigned  numerous  errors 
for  a  reversal  of  the  judgment  of  the  district  court,  but  oply 
two  are  relied  upon  by  counsel  for  appellant  in  their  brief,  and 
only  one  is  necessary  for  our  consideration. 

On  the  question  of  alihi  the  court  instructed  the  jury  as  fol- 
lows : 

"Thirty.  The  defendant  claims  as  his  defense  what  is  known 
in  law  as  an  alibi,  that  is,  that,  at  the  time  of  the  murder  with 
which  he  is  charged  was  being  committed,  he  was  at  a  different 
place,  so  that  he  could  not  have  participated  in  its  commission. 


SHOEMAKER  v.  TERRITORY  OF  OKLAHOMA. 


37 


"Thirty-one.  The  burden  is  upon  the  defendant  to  prove  this 
defense  for  himself,  by  the  preponderance  of  tho  evidence,  that 
is,  by  the  {];reater  and  superior  evicU'nee.  Tlie  defense  of  alibi, 
to  bo  entitled  to  consideration,  must  be  sneh  as  to  show  that,  at 
the  very  time  of  the  connnission  of  the  crime  charged,  the  ac- 
cused was  at  another  place  so  far  away,  or  under  such  cirenm- 
stiinces,  that  he  could  not,  with  all  the  means  of  travel  within 
his  control,  have  reached  the  place  where  the  crime  was  commit- 
ted, so  as  to  have  pa.rticii)ate(l  in  tlie  commission  thereof. 

"Thirl y-lxvo.  The  jury  is  instructed  that  if  they  believe  that 
the  Territory  has  ma<le  out  such  a  ease  as,  under  this  instruc- 
tion herein  given,  will  sustain  a  verdict  of  guilty  of  the  crime 
charged  in  the  indictment,  then  the  burden  is  upon  the  defendant 
to  make  out  his  defense  of  an  aVihi,  and,  upon  all  the  evidence, 
then  the  primary  question  is,  the  whole  of  the  evidence  being 
considered,  both  that  given  by  tlie  defendant  and  that  given  for 
the  Territory,  Is  the  defendant  guilty  beyond  a  reasonable 
doubt?  The  law  is  that  when  the  jury  has  considered  all  the 
evidence,  as  well  that  touching  the  question  of  the  alibi  as  tho 
criminating  evidence  introduced  by  the  prosecution,  then  if  they 
have  any  reasonable  doubt  of  the  guilt  of  the  accused  of  tho  of- 
fense of  which  he  stands  chariivd,  they  should  acquit;  but  if 
they  have  no  such  reasonable  doubt,  then  they  should  not  ac- 
quit, hut  should  find  the  dcfendiint  guilty." 

Exceptions  were  saved  to  the  giving  of  instructions  thirty- 
one  and  thirty-two,  and  one  of  the  grounds  upon  which  appel- 
lant relies  for  a  reversal  of  the  case  is  the  assignment  of  error 
committed  in  giving  ..istniction  number  thirty-one.  We  huvo 
set  out  the  three  instructions,  as  they  all  go  together,  and  are  tho 
entire  instructions  of  the  court  on  this  question. 

Instruction  thirty-one  is  erroneous.  The  general  provision 
of  our  statute  places  the  burden  of  proof  upon  the  Territory, 
and  we  have  no  ])rovision  which  changes  or  limits  this  general 
provision  with  reference  to  proving  an  alibi. 

Section  5201  provides:  ''A  defendant  in  a  criminal  action  is 
presumed  to  be  innocent  until  the  contrary  is  proved,  and  in 
case  of  a  reasonable  doubt  as  to  whether  his  guilt  is  satisfactorily 
shown  he  is  entitled  to  be  acquitted." 

This  section  is  identical  in  substance  with  section  228  of  the 


38 


AMERICAN  CRIMINAL  REPORTS. 


fl 


Criminnl  Code  of  Kansas,  wliicli  was  lidil  by  the  Supremo  Court 
of  that  State,  in  the  case  of  State  v.  Child,  40  Kan.  482,  "to  cast 
the  ImriU'n  of  proof  on  the  State." 

And  where  it  is  further  hchl:  "There  is  a  presumption  that 
clinfc's  to  a  person  charged  with  crime,  through  every  successivo 
step  of  his  trial,  that  he  is  innocent,  and  this  presumption  is 
never  weakened,  relaxed  or  destroyed,  until  there  is  a  judgment 
of  conviction.  The  State  is  required  to  prove  his  guilt  beyond 
any  reasonable  doubt,  and  all  the  defendant  has  ever  been  re- 
quired to  do  is  to  produce  evidence  that  creates  such  a  doubt  as 
to  entitle  him  to  an  acquittal.  He  is  not  requirc'^1  to  prove  his 
innocence;  all  that  is  demanded  of  him  is  to  show  such  a  state 
of  facts  as  to  create  a  reasonable  doubt  of  his  guilt.  This  de- 
fense of  (iJibi  is  peculiar  in  this  respect  so  far  as  this  case  is  con- 
cerned, that  the  State  is  bound  to  prove,  in  making  its  case,  that 
the  defendant  was  present  at  the  commission  of  the  crime,  and 
this  material  fact  it  nmst  prove  beyond  any  reasonable  doubt. 
The  defendant  alleges  he  was  not  present,  and  ho  offers  evidence 
to  sustain  this  allegation.  The  trial  conrt  said  he  must  prove  it, 
by  a  preponderance  of  the  evidence,  while  the  general  rule  of 
law,  outside  of  the  statutory  requirement,  casts  the  burden  of 
proving  that  fact  on  the  State." 

The  court  in  that  case  reversed  the  judginent  because  the  trial 
court  had  given  instructions,  in  not  nearly  as  strong  language 
as  that  in  which  the  instruction  in  question  is  couched,  to  the  ef- 
fect that  the  burden  of  proving  an  alibi  is  on  the  defendant  to  es- 
tablish the  same  by  a  preponderance  of  the  evidence,  but  direct- 
ing the  jury  to  acquit  the  defendant,  nnlesg  from  all  the  cir- 
cumstances surrounding  the  case,  they  were  satisfied  of  his  guilt 
beyond  a  reasonable  doubt.  The  offer  of  evidence  by  the  defend- 
ant tending  to  prove  an  alibi  does  not  change  the  burden  of  proof 
and  shift  it  upon  the  defendant.  And  this  principle  has  l)cen 
vigorously  maintained  even  in  the  absence  of,  or  at  least  without 
reliance  upon,  such  a  statute  as  that  of  ours  referred  to.  M'al- 
tcrs  V.  State,  39  Ohio  St.  215;  State  v.  Cliee  Gong  (Greg.),  I'J 
Pac.  Rep.  607;  Turner  v.  Commonwealth  (Pa.),  27  Am.  Rep. 
683 ;  Greenh  Ev.,  vol.  1,  §  74,  note. 

In  Mr.  Greenleaf  s  note  just  cited  he  used  this  positive  lan- 
guage in  expressing  the  rule:  "In  criminal  cases,  the  weight  of 


SHOEMAKER  v.  TERRITORY  OF  OKLAHOMA. 


30 


rviilciico  or  bunion  of  pnjof  lu-vor  sliifts  upon  the  Jefcndunt, 
but  is  upon  tbo  governiueiit  throufibont." 

In  Wisdom  v.  People  (Cnbi.),  17  I'nc.  Iiop,  519,  tbo  instruc- 
tion tbat,  "to  r(Mi<lor  proof  of  nn  alihl  satisfactory,  tbo  evidence 
must  cover  tbe  wli(»lo  time  of  tbo  transaction  in  question,  so  ns  to 
rciKlor  it  impossible  tbat  tbe  defendant  settinj^  up  such  defense 
Cdultl  luive  committed  tlie  act,"  was  bebl  reversible  error. 

in  French  v.  Slate,  12  Ind.  CTO,  reversible  error  was  held  to 
biive  been  committed  by  giving  tbe  instruction:  "Evidence 
wliicb  tends  to  establish  tbe  defendant's  guilt,  also  tends,  in  an 
equal  degree,  to  prove  tbat  be  was  present  at  tbe  time  and  [daco 
when  and  where  tbe  deed  was  committed;  and,  if  be  seeks  to 
]inive  an  (ilihi,  be  must  do  it  by  evidence  wbicli  outweighs  tbat 
given  for  the  State,  tending  to  fix  bis  presence  at  tbe  time  and. 
place  of  tbe  crime." 

In  this  case,  which  is  a  well  considered  opinion  api)rovod  by 
all  tbe  judges,  it  is  held  tbat  tbe  rule  is  nowise  difTerent  in  a 
ease  where  tbe  defendant  sets  up  an  alibi  from  what  it  is  where 
other  affirmative  matter  is  relied  on.  In  tbe  opinion  tbe  court 
says  with  reforence  to  the  instruction  given:  "This  instruction 
is  not  in  accordance  with  tbe  general  rule  of  law,  as  apjdied 
either  in  civil  or  criminal  cases;  for  in  the  former,  tbe  defend- 
ant is  not  bound  to  produce  evidence  which  outweighs  that  of 
the  plaintiff.  If  he  produces  evidence  which  exactly  balances 
it,  so  as  to  leave  no  preponderance,  be  defeats  the  suit  against 
iim. 

In  People  v.  Fong  Ah  Sing,  0-4  Cal.  253,  tbe  court  held  it  er- 
roneous to  give  an  instruction  on  alibi  which  directed  the  jury 
to  acquit  tbe  defendant  if  they  found  him  to  have  been  at  an- 
other place  at  the  time  of  tbe  commission  of  tbe  homicide. 

Tbe  instruction  here  in  question  is  very  much  like  that  in  this 
California  case,  for  it  tells  the  jury  that  tbe  alibi,  to  be  entitled 
to  consideration,  must  be  such  as  to  show  tbat,  at  the  very  time 
of  tbe  commission  of  tbe  crime  charged,  tbe  accused  v  as  at  an- 
other place,  so  far  away  or  iindcr  such  circumstances  that  ho 
could  not,  with  all  the  means  of  travel  within  his  control,  have 
reached  the  place  where  the  crime  was  committed  so  as  to  have 
participated  in  the  commission  thereof. 

Of  course  under  this  instruction  the  jury  could  only  consider 


40 


AMERICAN  CRIMINAL  REPORTS. 


t.! 


an  allhl  in  caso  it  was  shown  or  proven  as  a  fact,  an<l  this  was 
too  fiirat  an  ..l)ligation  to  i^lac-o  upon  the  dctVn.hint  in  any 
..v.Mit.  IIo  was  not  bound  to  provo  tlio  alibi.  Ho  was  not  honn-l 
to  provo  that  lie  was  at  some  ocher  pi»;ce  at  tho  time  of  the  coni- 
niission  of  the  crime,  no  matter  what  the  ovi.hMU'.>  of  the  Terri- 
tory ajrainst  him  mi^ht  he.  If  he  otl'ere.l  sudi  evi.hMice  as  w..uM 
create  in  the  minds  of  the  jury  a  reasoind)h'  doubt  as  to  bis  pres- 
otiee  at  the  time  of  tlio  connnission  of  tlie  crime,  liis  bunh-u 
was  fully  borne,  and  it  was  the  diUy  of  the  jury  to  acquit  him, 
althouf-li  the  evidence  so  offered  uiijiht  fall  very  short  of  ])rovih<i; 
as  a  fact,  by  the  f^reater  wei<>ht  of  the  evidence,  that  ho  was  not 
at  the  scene  of  the  crime  at  the  time  of  its  commission. 

There  are  some  authorities  holdinji>-  the  other  way  on  this  (pu's- 
tion;  as,  for  instance,  in  Iowa,  in  the  case  of  t^ialc  of  Town  r. 
llamillon,  :u  Iowa,  '.!»(!,  11  X.  W.  Re]).  5,  it  is  hold  that,  where 
the  defense  of  alibi  is  relied  upon,  the  burden  of  proof  is  on  the 
defendant  to  establish  it  by  a  ])reponderance  of  the  evidence. 

But  there  is  in  this  case  a  very  strouij  au<l  most  able  dissent 
by  Adams,  C.  J.,  also  concurred  in  by  Mr.  Justice  Day,  and  in 
our  view  of  the  law  the  dissenting  o])inion  is  niucdi  the  best  law 
written  in  that  case.  It  shows,  indeed,  how  absolutely  <lan<i('V- 
ous  to  liberty  is  the  rule  placing  the  burden  of  proof  on  the  de- 
fendant. 

The  dissent  in  this  case  also  cites,  with  particular  ap'  fr»vnl, 
the  case  of  French  v.  State,  12  Ind.  G70. 

Judj'e  Adams  and  Day  also  dissent  from  the  Tow;  i  cine 

in  the  case  of  State  of  Iowa  v.  Eml,  IT  X.  AV.  Kep.  l.'>(i. 

AVe  think  the  learned  judfje  who  tried  the  case  below  wa-  iiii> 
led  into  giving  this  instruction  by  following  the  precedents  given 
in  Sackett  in  his  work  on  Instructions,  where  the  doeti-iiie  is 
taken  from  the  Illinois  rule.  It  is  true  that  the  rule,  as  given, 
is  suppcu'ted  by  the  Illinois  decisions.  The  dangerous  departure 
from  the  ancient  and  time-honored  rule  of  presuming  the  in- 
nocence of  the  defendant  and  lodging  the  burden  of  ])roof  on 
the  prosecution  throughout  all  the  stages  of  the  case,  could  be  no 
more  forcibly  exhibited  than  is  done  by  the  extraordinary  rule 
finally  reached  by  the  Supreme  Court  of  Illinois,  as  ex])ressed 
in  the  syllabus  to  the  case  of  Klein  v.  The  People,  113  ill.  5'JG, 


whiehl 
show  1| 
aUegeil 
lenglh| 
the  pi!l 
the  till 
Sue 
penitej 
forceni 

In 
whiehl 
that  r' 
jury  tl 
of  an 
In  tha 
tempt? 
the  pr 
establ 


SHOEMAKER  r.  TERRITORY  OF  OKLAHOMA. 


41 


vliiclr  i"*:  ''A  tlefcndnnt,  to  establish  nn  alihl,  nuist  not  only 
tihow  he  was  prosont  lit  somo  otlior  place  about  tlio  time  of  the 
nllcficil  criino,  but  also  that  he  was  at  such  other  place  such  a 
Iciiftth  of  time  that  it  was  inipossiblt!  for  him  to  have  boon  at 
the  i)lace  where  the  crime  was  committed,  either  before  or  after 
the  time  he  was  at  such  other  place." 

S\u*h  a  nile  as  that  has  probably  htn(le<l  innocent  men  in  the 
penitentiary  or  on  the  f:;allows,  or  else  it  has  been  refused  en- 
forcement by  the  juries  of  the  very  State  that  has  ado])ted  it. 

In  the  case  of  Stale  of  Nevada  v.  Walerman,  1  Kev.  4r».'], 
•vvliich  was  cited  by  the  attorney -jjeneral,  the  Supreme  Court  of 
lluit  State  held  it  erroneitus  for  the  trial  court  to  instnict  the 
jury  that,  to  warrant  the  accpiittal  of  the  defendant  on  the  proof 
of  an  alihi,  they  must  be  satisfied  of  it.s  truth  by  the  testimony. 
In  that  case,  although  the  court  said  that  when  the  defendant  at- 
tcnijits  to  establish  an  alU>l  he  takes  on  himself  the  affirmative  of 
the  proof,  it  also  stated  that  "it  is  not  necessary  that  he  should 
establish  his  defense  by  a  pre])(mderanco  of  the  evidence."  The 
!ir<>iunent  is  a  stronfj  one  aj^ainst  i)!acing  the  burden,  to  any  ex- 
tent, upon  the  defendant,  and  is,  in  it^self,  a  refutation  of  the  out- 
ward rule  therein  formed  as  to  [)lacinp;  the  burden  of  proof  on 
tlie  defendant  on  such  an  issue. 

We  nuist  admit  that  we  are  unable  to  understand  how  the 
burden  of  jiroof  could  be  placed  upon  a  party  when  he  was  not 
retpiired  to  establish  the  same  by  even  a  pre])onderance  of  the 
evidence.  A  burden  that  need  not  l)e  established  by  a  prepon- 
derance of  the  evidence  is,  in  law,  no  burden  at  all,  for  a  pre- 
]K)n(lerance  of  the  evidence  is  the  least  degree  of  proof  by  which 
a  nropiisition  may  be  established. 

Xor  can  we  consider  the  celebrated  case  of  CommoniveaUli  v. 
Wehslcr,  5  Cush.  21)5,  as  being  an  authority  upon  which  we 
should  lay  down  a  different  doctrine  for  the  administration  of 
'Ik  criminal  law  in  this  Territory. 

The  accurate  langmige  there  used  by  "Mr.  Justice  Shaw  is 
spoken  of  in  the  case  of  Nevada  v.  Waterman,  supra,  as  being  a 
'"loose  expression." 

Judge  ]]eatty,  in  the  Waterman  Case,  says  that:  "The  only 
thing  we  find  in  the  books  at  all  tending  to  support  the  position 


42 


AMERICAN  CRIMINAL  REPORTS. 


1 

'.  1 

taken  by  counsel  for  the  State  is  a  loose  exijrcssion  of  Chief  Jus- 
tice Shaw,  in  the  charge  he  gave  to  the  jury  in  the  case  of  Com- 
monu-caUh  v.  ^V poster." 

Xm\  the  language  which  he  thus  referred  to  is  as  follows :  "In 
the  firdinary  case  of  an  alibi,  wlion  a  party  charged  with  a  crime 
attemjjts  to  prove  that  he  Avas  in  another  place  at  the  time,  all 
the  evidence  tending  to  prove  that  he  committed  the  offense, 
tends;  in  the  same  degree  to  prove  tliat  he  was  at  the  place  when 
it  was  ennnnitted.  If,  therefore,  the  proof  of  an  alihi  does  not 
outweigli  the  proof  that  he  was  at  the  place  when  the  offense  was 
committed,  it  is  not  sufficient." 

This  language  cannot  bear  the  test  of  reason,  or  else  it  is  a 
mistake  to  say  that  the  burden  of  proof  is  upon  the  prosecution 
in  a  criminal  cause.  As  is  said  in  tlie  first  two  sentences  quoted, 
tlie  evidence  tending  to  prove  a  crime  by  the  direct  act  of  a 
party  cliargcd  is  divided  into  two  primary  facts.  The  one  that 
he  did  the  act  which  constituted  tlie  crime;  the  other  that  he 
Avas  there  when  he  did  it.  Of  course  these  two  propositions 
must  be  established,  and  must  both  be  proved  as  against  some 
one  party,  or  there  could  be  no  crime  committed,  for  no  person 
could  do  the  criminal  act  by  whicli  the  crime  was  committed 
when  such  person  was  not  present  when  he  did  it.  And  why 
should  a  person  be  required  to  sustain  the  burden  of  proof  upon 
his  claim  as  a  defense  that  he  was  not  present  at  the  place  where 
the  prosecution  put  him,  unless  he  was  also  required  to  sustain 
the  burden  of  proof  that  he  did  not  do  it,  that  is,  that  he  was  not 
the  person  who  did  the  criminal  act  charged  and  relied  upon  by 
the  prosecution  ?  The  one  fact  is  just  as  necessarily  a  part  of 
the  proof,  and  is  just  as  much  undertaken  to  be  established  by 
the  prosecution,  as  the  other,  and  if  either  is  wanting,  the  prose- 
cution must  fall  and  the  accused  go  free. 

Suppose  the  prosecution  relies  for  the  conviction  of  the  de- 
fendant of  murder  on  proof,  however  strong  and  positive  it  may 
be,  that  the  defendant  at  the  particular  time  and  place  sliot  and 
killed  the  deceased.  The  two  primary  facts  are  that  a  i)crson 
1.1  the  time  and  place  stated  shot  the  dccased,  and  that  that  per- 
son was  the  defendant.  Now  no  pei-son  would  contend  tliat  the 
burden  of  proof  was  on  the  defendant  to  show  that  the  deceased 
was  not  shot  by  some  one,  but,  in  fact,  came  to  his  death 


somo 


SHOEMAKER  v.  TERRITORY  OF  OKLAHOMA. 


43 


otlior  way.  Xor  woukl  tlioy  contend  tliat  tlie  burden  of  proof 
■\viis  on  tlie  defendant  to  show  that  he  was  not  the  person  who 
did  the  shooting.  It  will  be  admitted  by  every  one  that  these 
two  facts  must  be  established  by  the  prosecution.  Xow  the  de- 
fendant is  not  precluded  by  the  testimony  of  the  prosecution, 
and  ho  is  not  required  to  meet  it  by  any  particular  form  of 
proof.  lie  may  desire  to  meet  it  in  the  only  way  that  many  a 
])(>rs(in  who  is  the  victim  of  an  honest  mistake  or  a  wilful  fabri- 
ciitifin  could  meet  the  seemingly  strong  proof  against  him,  and 
tliat  is  by  evidence  tending  to  show  that  lie  was  not  the  person 
wild  dill  the  shooting,  because  he  was  at  some  other  place  than 
the  scene  of  the  shooting  when  the  shooting  was  done,  so  that 
he  cduld  not  have  l)ecn  the  person  wdio  did  it;  and  he  certainly, 
to  our  minds,  no  moi'e  undertakes  the  burden  «»f  proof  in  a  cause 
])r('S(Miting  liis  defense  in  this  way  than  he  would  by  any  other 
folia  or  name  of  proof  which  co\ild  be  offered  under  the  plea 
of  not  guilty. 

if  the  language  of  ^fr.  Justice  Shaw  states  the  principle  cor- 
rectly in  declaring  that  proof  of  an  allhi  is  not  sufficient  unless 
it  outweighs  the  proof  that  he  was  at  the  place  where  the  offense 
was  committed,  then  we  see  no  reason  why  the  courts,  by  mere 
judicial  decree,  might  not  go  a  stej)  further  and  say  that  the 
jiroof  that  the  defendant  did  not  commit  the  criminal  act  could 
not  be  suflicient  unless  it  outweighs  the  proof  that  he  did  com- 
mit it.  And  we  would  change  the  legal  presumption  that  the 
defendant  is  innocent,  although  the  grand  jury  has  indicted  him, 
to  one  holding  him  guilty  until  he  has  proved  the  indictment 
false. 

We  are  unwilling  to  take  a  single  step  in  this  direction,  and 
must,  therefore,  for  the  error  committed,  reverse  the  judgment 
and  order  the  cause  remanded  for  a  new  trial. 


i 


McAtee,  J.,  who  presided  in  the  case  below,  not  sitting;  all 
the  other  justices  concurring. 


!     I 


u 


AMERICAN  CRIMINAL  REPORTS. 


II 


«    I 


SciiuLTZ  V.  TKuniTonv. 

Supreme  Court  of  Arizona,  February  23,  1898-52  Pac.  Rep.  352, 
Alidi:  Burden  of  proof— Credibility  of  ivitness. 

1.  For  a  defendant  to  deny  being  present  at  the  time  and  place  of  an 

alleged  crime  Is  not  an  affirmative  defense. 

2.  "Tlie  burden  of  proof  never  rests  upon  the  accused  to  show  his  In- 

nocence, or  to  disprove  the  facts  necessary  to  establish  the  crime 
with  which  he  is  charged." 

3.  An  instruction  that  the  jury  may  reject  the  entire  testimony  of  a 

witness  who  has  sworn  falsely  to  one  material  fact  is  erroneous, 
in  that  the  witness  might  have  been  honestly  mistaken. 

Appeal  from  the  District  Court  of  Yavapai  County;  Hon. 
John  J.  Hawkins,  Judge. 

William  Scliultz,  being  convicted  of  manslaughter,  appeals. 
Reversed. 

}Yilliam  II.  Barnes,  for  the  appellant. 

C.  M.  Frazier,  Attoniej-General,  and  II.  D.  Ross,  District  At- 
torney, for  the  Territory. 

Davis,  J.  The  defendant,  William  Sehultz,  was  tried  at  tho 
June  term,  1897,  of  the  district  court  of  Yavapai  county,  upon 
an  indictment  charging  him  with  murder.  He  was  convicted  of 
manslaughter,  and  sentenced  to  a  term  of  ten  years'  imprison- 
ment in  the  Territorial  prison.  The  appeal  is  from  the  judg- 
ment of  conviction,  and  from  an  order  denying  the  defendant's 
motion  for  a  new  trial. 

The  appellant  bases  his  contention  for  reversal  upon  two  in- 
structions given  by  the  trial  court  at  the  request  of  the  ]irosecu- 
tion.  One  of  these  instructions  was  in  the  following  language: 
"The  court  instructs  the  jury  that  the  defendant  claims,  as  ono 
of  his  defenses,  what  is  known  in  law  as  an  alibi;  that  is,  that, 
at  the  time  the  homicide  with  which  he  is  charged  was  com- 
mitted, he  was  at  a  different  place,  so  that  he  could  not  have  ]>ar- 
ticipated  in  its  commission.  The  burden  is  upon  tho  defendant 
to  prove  this  drfcnse  for  himself,  by  a  preponderance  of  evi- 
dence; that  is,  by  the  greater  and  sujierior  evidence.  The  de- 
fense of  alibi,  to  be  entitled  to  consideration,  must  be  such  as  to 
show  that,  at  the  very  time  of  the  c(jnunission  of  the  eriiiio 


SCHULTZ  V.  TERRITORY. 


45 


charged,  the  accused  was  at  another  place,  so  far  away  or  under 
such  circumstances  that  he  coukl  not  with  any  ordinary  exer- 
tinn  have  reached  the  place  where  the  crime  was  committed  so 
as  to  have  participated  in  the  commission  thereof."  While  con- 
coding  that  it  is  not  without  authority  for  its  support,  we  do  not 
think  this  instruction  fairly  and  correctly  states  the  law  appli- 
cahle  to  the  defense  of  alibi  The  burden  of  ])roof  never  rests 
u]tnii  tlie  acciised  to  show  his  innocence,  or  to  disj)rove  the  facts 
necessary  to  establish  the  crime  with  which  he  is  charged.  The 
defendant's  presence  at,  and  participation  in,  the  co<-pus  dcUcli, 
are  alHrniative  material  facts  that  the  prosecution  must  show 
])eyond  a  reasonable  doubt  to  sustain  a  conviction.  For  the  de- 
fendant to  say  he  was  not  there  is  not  an  atHnnative  proposi- 
ticin;  it  is  a  denial  of  the  existence  of  a  material  fact  in  the 
case.  Ho  meets  the  evidence  of  the  prosecution  by  denying  it. 
If  a  consideration  of  all  the  evidence  in  the  case  leaves  a  reason- 
able; ddubt  of  his  presence,  he  must  be  acquitted.  We  hold  that 
the  instruction  given  may  have  misled  the  jury  to  the  prejudice 
of  the  rights  of  the  defendant.  It,  in  effect,  said  to  the  jury  iliat 
eviilence  tending  to  show  such  alibi  is  not  to  be  considered  in 
favor  of  the  defendant,  unless  it  outweighs  all  the  evidence  in 
nj)i>iisition  to  it.  We  think  it  was  the  duty  of  the  trial  judge  to 
have  said  to  the  jury  that  they  must  consider  all  the  evidence  in 
the  case,  including  that  relating  to  the  alibi,  and  determine  from 
tlio  wh()l{>  evidence  whether  it  was  shown  beyond  a  reasonable 
(lonbt  that  the  defendant  had  committed  the  crime  with  which 
he  was  charged.  The  burden  of  proof  was  not  changed  when 
tlu>  defendant  midertx^Hjk  to  prove  an  alibi,  and  if,  by  reason  of 
the  evidence  in  relation  to  such  alibi,  the  jury  should  doubt  the 
defendant's  guilt,  he  would  be  entitled  to  an  acquittal,  although 
the  jury  might  not  be  able  to  say  that  the  alibi  had  been  fully 
proved.  People  v.  Nelson,  80  Cal.  421,  24  Pac.  Rep.  lOOG ; 
Projilc  V.  Tarm  Poi  (Cal.),  24  Pac.  Rep.  998;  Wallers  v.  State, 
•V.)  Ohio  St.  215;  Davis  v.  Uniled  States,  IGO  IT.  S.  4(59,  59 
Su]).  Ct.  35.'{. 

The  other  instruction  complained  of  was  as  follows:  *'The 
court  instructs  the  jury  that  if  they  find  from  the  evidence,  be- 
yond a  reasonable  doubt,  that  any  witness  in  this  case  has  sworn 
falsely  as  to  any  material  fact,  then  the  jury  may  disregard  the 


¥ 


til 


^Q  AMERICAN  CRIMINAL  REPORTS. 

whole  testimony  of  such  witness,  except  in  so  far  as  it  is  cor- 
roborated by  ot'ier  credible  testimony."  This  instruction  was 
also  erroneous.  Before  tiie  jury  can  disregard  the  testimony  of 
a  witness,  it  must  appear  that  the  witness  has  knowingly  and  in- 
tentionally sworn  falsely.  A  witness  might  tfsstify  falsely,  and 
yet  be  honest;  and  the  mistake  of  one  who  igJiorantly  and  unin- 
tentionally testifies  falsely  is  not  sufficient  to  permit  his  eniire 
testimony  to  be  disregarded.  As  was  said  by  this  court  in  Follcft 
V.  TcvrUory,  33  Pac.  Rep.  8G0:  "The  maxim,  'Fahiis  in  uno, 
falsus  in  omnibus,'  applies  only  in  case  the  witness  has  know- 
ingly and  wilfully  sworn  falsely."  This  instruction  is  also 
condemned  in  Pope  v.  Dudson,  58  111.  3G5 ;  McChire  v.  ^yill- 
iams,  05  111.  ^n;Danie\j  v.  Dudley  (Kan.  Sup.),  15)  Pac.  Rep. 
550;  Ilillman  v.  Schwcnl;  GS  Mich.  293,  3G  K  W.  Rep.  77; 
Express  Co.  v.  IMchins,  58  111.  ■^l;  Swan  v.  People,  9S  111.  GIG. 
For  the  erroneous  instructions  given,  the  judgment  and  order 
appealed  from  are  reversed,  and  the  cause  remanded  for  a  new- 
trial. 

Note  (by  J.  F.  G.).— In  ^VaUers  v.  State,  39  Ohio  St.  215  (cited  In 
above  opinion),  the  court  said:  "We  thinlc  it  was  the  duty  of  the  judge 
to  have  said  to  the  jury  that  they  must  consider  all  the  evidence  in 
the  case,  including  that  relating  to  the  alibi,  and  determine  from  the 
ichole  evidence  whether  it  was  shown  beyond  a  reasonable  doubt  that 
the  defendant  had  committed  the  crime  with  which  he  was  charged. 
The  burden  of  proof  was  not  changed  when  the  defendant  undertook 
to  prove  an  alibi,  and  if,  by  reason  of  the  evidence  in  relation  to  such 
alibi,  the  jury  should  doubt  the  defendant's  guilt,  he  would  be  entitled 
to  an  acquittal,  although  the  jury  might  not  be  able  to  say  that  the 
alibi  was  fully  proven." 

Even  0  wilful  false  statement  does  not  necessarily  destroy  the  entire 
testimony  of  the  tcitness.—ln  Hoge  v.  People,  117  111.  35,  6  N.  E.  Rep. 
796,  we  find  the  following: 

"The  eleventh  and  twelfth  instructions,  given  at  the  instance  of  the 
People,  are  as  follows: 

"  '11.  You  are  the  sole  judges  of  the  credibility  of  the  witnesses  in 
this  case,  and  the  credit  to  be  given  to  each  is  to  be  determined  by  you 
from  considering  the  probability  or  improbability  of  their  statements; 
their  means  or  want  of  means  of  knowledge  of  the  facts  to  which  they 
testify;  their  manner  upon  the  stand;  their  contradictory  statements, 
If  any,  whether  or  not  they  were  contradicted  by  other  witnesses,  or  by 
facts  and  circumstances  appearing  in  evidence.  And  if  you  believe, 
from  the  evidence,  that  the  witness  Hennessy  has  testified  falsely  as  to 
any  material  fact  in  this  case,  then  you  may,  and  it  is  your  duty  to, 
disregard  his  entire  evidence,  except  so  far  as  he  is  corroborated  by 


PEYTON  ET  AL.  v.  STATE. 


4T 


other  credible  evidence,  or  by  facts  and  circumstances  proved  on  the 
trial. 

'•  12.  If  you  believe,  from  the  evidence,  that  the  witness  J.  E.  Hanna 
has  received  or  agreed  to  receive  any  money  in  this  case,  then  you 
should  consider  that  fact  In  determining  what  credit,  if  any,  you  should 
give  to  his  testimony.  And  If  you  believe,  from  the  evidence,  that  J.  E. 
Hanna  has  testified  wilfully  and  corruptly  false  as  to  any  material  fart, 
then  you  will  disregard  his  entire  testimony,  excepting  so  far  as  he  is 
corroborated  by  other  credible  evidence,  or  by  facts  and  circumstances 
proved  on  the  trial.' 

"These  instructions  are  both  erroneous,  and  have  frequently  been 
condemned  by  this  court.  The  eleventh  omits  the  very  material  quali- 
fication that  the  false  testimony  shall  have  been  wilful,  and  both  assert 
that  the  Jury  vtust  disregard  the  testimony.  The  jury  viay,  but  they 
are  not  hound  to,  disregard  the  evidence.  United  States  Express  Co.  v. 
Hutchins,  58  111.  44;  Pope  et  al.  v.  Dodson,  Id.  360;  Otmer  v.  The  PeO' 
pie,  70  id.  149;  GuUiher  v.  The  People,  82  id.  146;  Stcan  v.  The  People, 
^98  Id.  612." 


Peyton  et  al.  v.  State. 


54  Neb.  188—74  N.  W.  Rep.  597. 
Filed  March  17,  1898— No.  9,852. 
Alibi:  Instructions — Evidence. 

1.  "Alibi,"  as  employed  to  express  the  defense  of  the  accused  person 

in  a  criminal  action,  means  the  claim  of  tlie  party  charged  of 
presence  at  the  time  the  crime  Is  pleaded  to  have  been  committed 
at  a  place  other  than  the  one  alleged  of  the  crime. 

2.  The  distance  of  the  place  where  a  party  who  is  charged  claims  to 

have  been  at  the  time  from  the  alleged  location  of  the  commitment 
of  a  crime,  while  necessarily  elemental  of  the  different  places, 
is  not  the  controlling  fact  or  element;  and  it  is  not  proper  to  in- 
struct a  jury  that  In  a  defense  of  alibi  it  must  appear  that  the  dis- 
tance was  so  great  as  to  preclude  the  possibility  that  the  accused 
could  have  been  at  the  stated  scene  of  the  crime  charged. 

3.  In  a  criminal  case  the  burden  of  proof  is  not  upon  the  person  on 

trial  to  establish  an  alibi,  and  an  Instruction  by  which  a  jury  is 
informed  that  it  Is,  Is  erroneous. 

4.  Where  the  defense  in  a  criminal  action  is  an  alibi.  It  Is  sufficient  to 

call  for  a  verdict  of  acquittal  if  the  jury,  from  a  consideration  of 
all  the  evidence,  have  a  reasonable  doubt  of  the  presence  of  the 
accused  at  the  place  and  time  of  the  alleged  crime,  whether  such 
doubt  be  from  lack  of  proof  on  the  part  of  the  State,  or  from  the 
evidence  adduced  in  behalf  of  the  party  charged. 
(Syllabus  official.) 


4S 


AMERICAN  CRIMINAL  REPORTS. 


Ui 


f ; 


Error  to  the  District  Court,  Douglas  County;  Hon.  B.  S. 
liakcr,  J.    llcvcrscil. 

T.  J.  Malwney  and  Duffxc  &  Van  Dusen,  for  the  plaintiffs  in 


error. 


C.  J.  Smyih,  Attorney-General,  and  Ed.  P.  Smith,  Deputy 
Attorney-General,  for  the  State. 

nARUisox,  C.  J.  In  an  information  filed  in  the  district  court 
of  Douglas  county  the  plaintiffs  in  error  were  charged  in  a  first 
count  thereof  with  the  crime  of  shooting  a  designated  person 
with  an  intent  to  kill  him;  in  a  second  count,  with  shooting  said 
person  with  an  intent  to  wound  him.  On  arraignment  each 
pleaded  not  guilty.  A  trial  of  the  issues  resulted  in  a  eonvic-  *, 
tion  of  plaintiffs  in  error  of  the  eonnnission  of  the  crime  charged 
in  the  second  count  of  the  information,  and  suhsoquontly  each 
Avas  sentenced  to  imprisonment  in  the  penitentiary  for  a  period 
of  four  years.  Of  the  proceedings  during  tlie  trial  a  review  on 
behalf  of  the  convicted  parties  is  the  object  of  the  error  proceed- 
ing in  this  court. 

Of  the  defenses  interposed  for  plaintiffs  in  error  in  the  trial 
court  was  that  of  an  alibi  Testimony  was  introduced  which 
tended  to  establish,  that  at  the  time  the  crime  was  committed, 
with  the  perpetration  of  which  plaintiffs  in  error  were  charged, 
they  were  at  home,  not  present  at  the  scene  of  such  crime,  and 
could  not  have  been.  In  its  charge  to  the  jury  the  trial  court 
gave  an  instruction,  numbered  G,  on  the  subject  of  the  d(>fonse, 
to  which  we  have  just  referred,  which  instruction  was  in  th(^ 
following  terms:  "The  defendants  claim  as  a  part  of  their  de- 
fense what  is  known  as  an  alibi j  that  is,  at  the  time  the  crime 
with  which  they  stand  charged  was  being  committed  they  wore 
at  such  a  distance  and  different  place  that  they  could  not  have 
participated  in  its  commission.  The  defense  of  alibi,  to  be  en- 
titled to  consideration,  must  be  such  as  to  show  that  at  the  vorv 
time  of  the  commission  of  the  crime  the  accused  were  at  another 
place,  so  far  away  and  under  such  circumstances  that  they  could 
not,  with  ordinary  exertion,  have  reached  the  place  where  the 
crime  was  committed.  Proof  of  an  alibi  must  be  sufficient  to 
raise  in  your  minds  a  reasonable  doubt  of  the  defendants'  pros- 


PEYTON  ET  AL.  v.  STATE. 


49 


eueo  at  the  time  and  place  of  the  commission  of  the  crime 
cliarged."  This,  it  is  insisted,  Avas  erroneous  and  prejudicial  to 
the  rights  of  the  parties  on  trial,  in  that  it  emhodied  an  incor- 
rect definition  of  the  defense  relative  to  which  it  was  framed 
and  read  for  the  information  of  the  jury. 

An  alibi  in  criminal  law  is  defined  in  Black's  Law  Dictionary 
as  follows:  "Elsewhere;  in  another  place.  A  term  used  to  ex- 
press that  mode  of  defense  to  a  criminal  prosecution,  where  the 
piM'ty  accused,  in  order  to  prove  that  he  could  not  have  com- 
mitted the  crime  with  which  he  is  charged,  offers  evidence  to 
show  that  he  was  in  another  place  at  the  time ;  which  is  termed 
sotting  up  an  alibi"  And  in  2  Am.  &  Eng.  Ency.  Law  (2d  ed.), 
5o,  '*Tho  word  'alibi'  means,  literally,  'elsewhere,'  and  a  pris- 
oner or  accused  person  is  said  to  set  up  an  alibi  when  he  alleges 
tlint,  at  the  time  when  the  offense  with  which  he  is  charged  was 
cuniniittcd,  he  was  'elsewhere ;'  that  is,  in  a  place  different  from 
tliat  in  which  it  was  committed."  The  trial  court  made  use  of 
the  words  "at  such  distance  and  different  place  that  they  could 
not  have  participated  in"  the  commission  of  the  crime,  in  de- 
fining an  alibi.  The  expression  as  to  the  element  of  distance 
was  an  incorrect  one.  That  parties  charged  with  acts  constitut- 
ing a  crime  were  at  a  place  other  than  that  of  the  alleged  -acts 
embraces  necessarily  as  elemental  of  its  existence  as  a  fact  that 
tlu'v  were  also  at  some  distance  from  the  alleged  place  of  the 
commitment  of  the  crime.  But  that  the  distance  disclosed  by 
the  evidence  be  long  or  short  is  not  always  an  absolutely  con- 
trolling fact.  It  can  do  no  moi*e  than  to  lend  greater  or  lesser 
countenance  and  force  to  the  defense  in  a  degree  proportionate 
to  its  extent.  That  the  distance  must  be  such  as  to  preclude  any 
possibility  of  a  participation  in  the  crime  as  was  expressed  in 
the  instruction  quoted  was  incorrect,  conveyed  a  wrong  impres- 
sion, and  was  calculated  to  prejudice  the  rights  of  the  parties  on 
trial. 

What  we  have  just  said  is  equally  forcible  and  applicable  to 
the  portion  of  the  instruction  in  which  the  jury  was  told  that 
the  defense  presented,  to  be  entitled  to  consideration,  must  es- 
tablish that  when  the  crime  was  committed  the  accused  were 
so  far  away  and  under  such  circumstances  that  they  could  not 
by  ordinary  exertion  have  reached  the  place  of  the  crime.  This 
VouXI-4 


f 


!       I! 


60 


AMERICAN  CRIMINAL  REPORTS. 


was  wrong  in  its  absolute  requirement  that  it  bo  shown  that  the 
])lnc('  wboro  plaintiffs  in  error  claimed  to  have  been  other  than 
tluit  of  the  crime  was  so  far  distant  from  the  latter  that  the  par- 
ties charged  could  not  by  any  ordinary  exertion  have  been  at 

the  liitter  place. 

The  instruction  was  also  objectionable  for  casting  the  burden 
of  proof  of  the  alibi  on  the  plaintiffs  in  error.  In  regard  to  the 
burden  of  proof  generully  in  criminal  cases  it  was  stated  in 
Gmvoly  v.  Slate,  38  Xeb.  871:  *'In  criminal  prosecutions  the 
burden'  of  proof  never  shifts,  but,  as  to  all  defenses  which  the 
evidence  tends  to  establisli,  rests  upon  the  State  throughout; 
honco  a  conviction  can  be  had  only  when  the  jury  are  satisfied, 
from  a  consideration  of  all  the  evidence,  of  the  defendants' 
guilt  beyond  a  reasonable  doubt.  That  rule  applies  not  alone 
to  the  case  as  made  by  the  State,  but  to  any  distinct,  substantive 
defense  which  may  be  interposed  by  the  accused  to  justify  or 
excuse  the  act  charged."  (See  citations  in  the  body  of  the  opin- 
ion, page  873.)  It  was  said  by  Maxwell,  C.  J.,  in  Burger  v. 
Stale,  34  Neb.  397:  "An  instruction  that  'if  you  find  the  de- 
fendants tendered  a  reasonable  doubt'  is  erroneous,  as  it  in  effect 
shifts  the  burden  of  proof  onto  the  accused.  The  true  rule  is 
that  if  upon  all  the  evidence  the  jury  entertain  a  reasonable 
doubt  of  the  guilt  of  the  accused  they  should  acquit."  In  Casey 
V.  State,  49  Neb.  403,  directly  on  the  subject  of  the  defense  of 
an  alibi,  it  was  held:  "It  is  error  to  instruct  that  the  accused  in 
a  criminal  prosecution  is  required  to  prove  an  alibi.  It  is  suffi- 
cient to  entitle  him  to  an  acquittal  if  the  jury,  from  a  considera- 
tion of  all  of  the  evidence,  entertain  a  reasonable  doubt  of  his 
presence  at  the  commission  of  the  crime  charged,  whether  such 
doubt  arise  from  a  failure  of  proof  on  the  part  of  the  State,  or 
from  evidence  submitted  by  the  accused  in  his  own  behalf." 
In  the  body  of  the  opinion  it  was  stated :  "There  are,  it  must  be 
confessed,  precedents  for  the  instructions  complained  of,  but 
the  sound  rule  is  believed  to  be  that  the  accused  in  a  criminal 
prosecution  is  entitled  to  an  acquittal  whenever  the  jury,  from 
a  consideration  of  all  of  the  evidence  adduced,  entertain  a  rea- 
sonable doubt  of  his  presence  at  the  time  and  place  where  the 
crime  is  shown  to  have  been  committed."  In  the  opinion  in  the 
case  of  Henry  v.  State,  51  Neb.  149,  appears  the  following  state- 


ment: 
ing  in! 

posed 
county 
have  b 
lows  h 
court, 
tire  pe 
comini 
over  til 
;i  roasr 


THE  STATE  v.  TAYLOR. 


51 


incnt:  "We  are  also  of  the  opinion  that  the  court  errod  in  giv- 
ing inptnictions  Nos.  10  and  11,  by  which  the  burden  was  iin- 
poscMl  upon  the  accused  of  proving  his  presence  in  Franklin 
county  for  such  length  of  time  that  it  was  impossible  for  him  to 
liinc  boon  present  at  the  commission  of  the  honncide.  It  fol- 
lows logically,  if  not  necessarily*,  from  the  decisions  of  this 
court,  that  the  proof  of  an  alibi  is  not  required  to  cover  tlie  ou- 
tiro  period  within  which  the  offense  might  possibly  have  been 
ooniiiiittcd,  but  that  the  accused  is  entitled  to  an  acquittal  when- 
cvor  the  evidence  is  sufficient  to  create  in  the  minds  of  the  jurors 
a  reasonable  doubt  of  his  presence  at  the  commission  of  the  of- 
fense with  which  he  stands  charged."  See  also  McLain  v.  State, 
IS  Xob.  154;  Bed-  v.  State,  51  Xeb.  100;  State  v.  Child,  40 
Kan.  482,  2  Am.  &  Eng.  Ency.  Law  (2d  ed.),  55,  note  3.  For 
tlio  error  in  giving  the  instruction  under  consideration,  the  j\idg- 
nuMit  must  be  reversed  and  the  cause  remanded. 

There  are  other  assignments  of  error  argued  in  the  briefs  filed 
heroin,  but  we  do  not  deem  their  discussion  necessary  and  will 
ouiit  it. 

lieversed  and  remanded. 


Audi; 


The  State  v.  Taylor. 

118  Mo.  153—24  S.  W.  Rep.  449. 

Division  Two,  November  21,  1893. 

Discrediting    witness — Res    gestir — Separate   offense — Remarks 
of  coujisel — Error  presumed  prejudicial. 


1.  A  witness,  to  discredit  him,  may  be  aslved  whether  he  was  arrested 

for  another  offense  and  sent  to  jail.  State  v.  Miller,  100  Mo.  606, 
followed. 

2.  Evidence  against  a  defendant,  competent  as  part  of  the  res  gestw, 

is  not  admissible  because  it  may  show  him  to  be  guilty  of  an- 
other  crime. 

3.  Testimony  of  a  police  officer  that  he  met  defendant,  who  was  on 

trial  for  rape,  on  the  night  of  the  crime  near  where  it  was  com- 
mitted, just  as  defendant  was  approaching  a  bridge  near  the  line 
of  another  State,  and  that  on  his  attempt  to  stop  him  defendant 
fired  a  revolver  at  the  officer,  is  competent  as  showing  defendant's 
presence  in  he  vicinity  of  the  crime  and  also  as  showing  an  at- 
tempt to  escape;  and  this  is  true  although  the  officer  had  not  been 
informed  of  the  crime. 


'■"W^ 


AMERICAN  CRIMINAL  REPORTS. 


? 


4.  Improper  remarks  of  counsel  not  made  the  subject  of  an  exception 

will  not  be  considered  on  appeal. 

5.  An  instruction  to  find  the  defendant  not  guilty,  if  at  the  time  the 

offense  wa3  committed  he  was  at  a  place  other  than  that  of  Its 
commlasion,  is  erroneous,  because  it  is  not  required  that  the  Jury 
should  find  as  a  fact  that  defendant  was  at  such  other  place, 
wlicreas  he  is  entitled  to  an  acquittal  if  there  Is  a  reasonable 
doubt  that  he  was  present. 

6.  Nor  Is  such  erroneous  instruction  cured  by  a  general  one  given  on 

the  subject  of  reasonable  doubt,  for  the  two  instructions  are  nec- 
c.Kgariiy  conflicting. 

7.  Under  Revised  Statutes,  1889,  section  -1200,  the  trial  court  should 

in  a  criminal  case  specially  Instruct  the  jury  on  the  law  in  refei- 
ence  to  an  ulihi,  where  that  defense  is  raised  by  the  evidence; 
and  where  an  erroneous  instruction  is  in  such  case  asked  by  the 
defendant,  it  is  the  duty  of  the  court  to  give  a  correct  one  in  place 
of  It. 

8.  "Wherever  it  is  the  duty  of  the  trial  court  upon  a  proper  request. 

in  a  criminal  case,  to  Instruct  the  Jury  upon  any  material  question 
of  law  arising  on  the  evidence,  it  is  equally  obligatory  upon  it, 
of  Its  own  motion,  to  instruct  the  jury  upon  such  matter,  whether 
requested  to  do  so  or  not. 

Ap])oal  from  Jnck.^fin  Criminal  Court;  Hon.  Jiio.  W.  Wof- 
ford,  Judgo.    Eevcrscd  and  remanded. 

Scoit  Ashton  and  /.  S.  Brools,  ft)r  appellant. 
(1)   The  court  erred  in  refusing  to  give  in.structions  num- 
bered 9  and  9a  of  the  instru('ti(tns  a^ked  In-  defendant.     They 
projierly  stated  the  law  as  to  tlie  defense  of  an  nUhi.     2  Thomp- 
son on  Trials,  sec.  2440;  McLahi  r.  Stale,  IS  Xeb.  100;  Camp- 
hcll  V.  People,  109  111.  .jO.-);  Stale  r.  Edwards,  109  :\[o.  31.";. 
(2)  The  court  erred  in  not  granting  a  new  trial  because  of  tho 
inflannnatory  language  of  the  prosecuting  attorney,  who  stated 
in  his  closing  argmnent  to  the  jury,  ''All  the  sixteen-year-ohl 
girls  and  the  fathers  of  all  girls  in  Jackson  county  Avhisper  to 
you  to-day  to  convict  this  man."    IlaijHcs  v.  Trenton,  lOS  Mo. 
133;  State  v.  Jackson,  93  Mo.  G53;  Conn  v.  State,  11  Te.\'.  App. 
400.    (3)  The  court  erred  in  permitting  Officer  Thomas  to  stato 
to  the  jury  the  ground  of  his  feeling  against  the  defendant. 
Butler  V.  Slate,  34  Ark.  4S0;  People  v.  State,  G2  Ala.  237; 
Chelfon  V.  State,  45  Md.  570.     (4)  The  court  further  erred 
in  permitting  the  witness  Copeland  to  tell  that  defendant  got  ton 
cents  from  him,  thereby  permitting  the  State  to  prove  an  addi- 
tional and  different  crime.     (5)  The  verdict  is  contrary  to  tho 
evidence. 


! 


THE  STATIi  V.  TAYLOR. 


68 


7?.  F.  WdlJi'ci',  Attnrnov-Gcncrnl,  Morion  JnunJan,  Asniistant, 
nml  Marnj  K.  Jimirn,  ProHccutiiig  Attorney,  for  the  State. 

(1)  The  tostiiiKtiiy  of  OlHcei*  Tliomas  was  coinpotont.  1 
I!i-lio|.,  Crim.  Trne.  (fM  <>(!.),  sees.  118-120;  State  v.  Leatw,  89 
:M...,  Iov.  lit.  258;  Ucv.  Stat.  1889,  sec.  415;  State  v.  Kedo.  105 
31  n.,  !,>c.  c'lt.  42;  Slate  v.  Dc  Mossc,  98  Mo,  342;  State  v.  Jack- 
soil.  !I9  Mo.,  he.  cil.  G;3;  1  Ijishop,  Cr.  Law,  sees.  995,  990. 
[■2)  The  extent  to  which  parties  may  pursue  even  colhUoral  niat- 
tciH,  in  the  examination  of  witnesses,  for  the  purpose  of  cstab- 
lishinji,'  the  prejudice  or  feelings  of  a  witness  toward  the  parties, 
rests  larudy  in  the  discretion  of  the  trial  court,  which  will  not 
be  tno  severely  reviewed  by  the  higher  tribunal.  Ellsworth  v. 
]'ollrr,  41  Vt.  085 ;  Powers  v.  Leach,  20  Vt.  270.  (3)  Any  ef- 
forts of  a  defendant,  shortly  after  the  commission  of  a  crime,  to 
escjipe,  or  to  evade  or  avoid  arrest,  or  to  elude  justice,  and  all  acts 
(luiic  toward  consummating  such  escape,  or  evading  such  arrest, 
liMve  ahvays  been  held  admissible  as  creating  a  strong  presump- 
tinn  of  guilt.  1  Bishop,  Crim.  Proc.  (3d  ed.),  sec.  1250;  State 
r.  Moore,  101  ]\Io.,  loe.  cil.  339;  State  v.  King,  78  Mo.,  loc.  cit. 
riTil ;  Slate  V.  ]Villla»is,  54  3[o.  171.  (4)  It  is  alwaj's  competent 
for  the  State  to  show  all  the  acts  of  a  defendant  having  any 
tendency  to  prove  or  bearing  ui)on  his  guilt,  even  though  such 
acts  involve  the  commission  of  another  and  totally  diiferent 
crime.  State  v.  Rider,  95  3Io.,  loc.  cit.  485;  Stale  v.  William- 
son, 100  :3[o.  103;  State  v.  Green  wade,  72  ^[n.  298;  1  Pishop, 
(rim.  Proc.  (3d  ed.),  sees.  1120-1128,  1129;  2  Pishop,  Crim. 
Prop.  (3d  ed.),  sees.  201,  428.  (5)  The  court  did  not  err  in  its 
ruling  on  the  instnictions,  and  the  evidence  is  amply  sufficient 
to  support  the  verdict.  (0)  It  was  imi)roper  to  ask  witness  if  he 
hml  been  arrested  and  put  in  jail  for  stealing;  though  to  show 
his  conviction  of  that  offense  would  have  been  proper.  Stale  v. 
Douglass,  81  Mo.  234;  State  v.  liiigan,  08  Mo.  214;  State  v. 
McGraw,  74  Mo.  573;  State  v.  Lewis,  8  ^h\  110;  Slate  v.  Jen- 
nings, 81  Mo.  185;  State  v.  Howard,  102  Mo.  142;  Slate  v. 
Taylor,  98  Mo.  240.  (7)  The  instructions  on  the  question  of 
alibi  were  complete,  correct,  and  in  the  forms  approved  by  this 
court.  State  v.  Rochett,  87  Mo.  008 ;  Stale  v.  Johnson,  91  Mr>. 
442 ;  State  v.  Sanders,  100  Mo.  195 ;  State  v.  Shroyer,  104  :Slo. 
448 ;  Slate  v.  McCoy,  111  Mo.  517.    (8)  The  same  doctrine  has 


■^ 


6^ 


AMtUICAN  CRIMINAL  REPORTS. 


I   I 


loon  npprovcil  in  Slide  v.  Sutton,  70  lown,  208 ;  Stale  v.  Leed, 
C2  Iowa,  40.  (1>)  A  jreneral  instruction  to  acquit,  if  n  rcnson- 
ablo  doubt  exists,  is  sulKciont.  State  v.  ^yhcclcr,  108  :^^o.  (5.')S ; 
Stale  V.  Dunn,  IS  :Mo.  419;  State  v.  Crawford,  34  Mo.  200; 
Stak  V.  Iloddt,  supra;  State  v.  Elliot,  98  ^[o.  l.M;  State  v. 
]Yhalcn,  98  Mo.  222;  <S7a/c  v.  McKwsey,  102  :Mo.  O.'JO. 
(10)  yl//7^i  is  as  any  other  ilefcnse  and  governed  by  snmo  rulc3. 
Stale  V.  Sanders,  supra;  State  r.  Johnson,  supra;  State  v.  Jen- 
nlu<js.  supra;  State  c.  norlrtt,  supra;  People  v.  Levine,  85  Cal. 
41 ;  People  V.  \Von(j  Ah  Foo,  09  Cal,  1S2;  People  v.  Lattimore, 
SO  Cal.  403;  Slate  v.  Peed,  02  Iowa,  40;  State  v.  Kline,  54: 
Iowa,  185;  Slate  v.  Ped,  53  Iowa,  70;  State  v.  Blunt  59  Iowa, 
40!).  (11)  The  rule  is  that  no  instruction  need  be  given  as  to 
alibi  for  the  reason  that  the  same  is  fully  covered  by  the  reason- 
able-doubt instruction  as  usually  given.  State  v.  Shroi/er,  104: 
]l[o.  448;  Stale  v.  McCoy,  111  .Mo.  517;  Ayres  v.  State,  21 
Texas  App.  309;  McAfee  v.  State,  17  Tex.  App.  131;  State  v. 
Sutton,  70  Iowa,  208;  Slate  v.  Cross,  08  Iowa,  180;  State  v. 
Stewart,  52  Iowa,  284. 

Gaxtt,  p.  J.  The  defendant,  a  negro  man,  was  indicted  in 
the  criminal  court  of  Jackson  county,  for  rape  upon  Lulu 
Butcher,  a  white  girl  about  sixteen  years  old.  lie  was  indicted 
and  sentenced  to  the  penitentiary  for  fifteen  years. 

The  testimony  tends  to  show  that  on  the  night  of  Septend)er 
25,  1891,  at  Kansas  City,  Missouri,  Lulu  Butchor,  a  young 
white  girl  of  sixteen  years,  was  returning  to  her  home,  in  tho 
southern  part  of  that  city,  from  a  dance.  With  her  was  a  young 
man  or  boy,  Ed.  Copoland,  of  about  the  same  age,  who  was  acting 
as  her  escort.  They  were  walking,  the  street  cars  having  ceased 
to  nm  for  the  night.  \Yhen  they  reached  a  point  on  Grand 
avenue,  between  Twenty-sixth  and  Twenty-seventh  streets  and 
near  the  Union  cemetery,  a  man,  whom  they  afterwards  identi- 
fied as  defendant,  stepped  out  from  the  shadow  on  the  roadaido 
and  placed  a  pistol  at  the  head  of  young  Copeland,  who  was  en- 
tirely unanned,  and  compelled  him  to  throw  up  his  hands.  ITo 
then  proceeded  to  search  his  pockets.  The  robber  then  tied 
Copeland's  hands  behind  his  back  and  forced  him  and  !^[is3 
Butcher,  under  threats,  to  leave  the  road  or  street  and  go  down 


THE  STATE  v.  TAYLOR. 


65 


into  a  depression,  on  the  side  of,  but  ncnr  to,  tlic  rond.  Then  ho 
citlier  throw  Copolnnd  down  or  compelled  him  to  lie  down,  llo 
ordered  tlic  girl  to  He  down,  and  then  and  there  committed  tho 
rnpe.  In  her  testimony  she  admits  she  made  no  outcry,  or  rc- 
gi<t:mce,  because  she  was  afraid  he  would  kill  her  if  she  did. 

On  the  part  of  defendant  it  was  shown  that  a  Mrs.  Holmes 
resided  on  the  lot  adjoining  the  cemetery,  and  that  there  was  a 
giisliiiht  in  the  vicinity.  The  dimensions  of  the  cemetery  are 
not  given.  The  defendant  was  shown  to  he  a  man  six  feet  in 
stiitiive.  After  the  crime  was  jierpetrated  her  assailant  permit- 
ted .Miss  IJiiteher  and  young  Copeland  to  return  to  her  homo, 
wliich  she  reached  about  one  o'clock  the  next  morning.  She  at 
diioe  told  her  mother,  and  on  this  complaint  the  defendant  was 
nrrepted  the  next  day  and  was  identified  by  both  Wiss  Hutcher 
and  Copeland. 

Two  other  witnesses,  Doc.  ^filler  and  Police  Officer  Thomas, 
t('*tilied  to  seeing  defendant  in  that  part  of  the  city  later  in  tho 
iiiglit,  or  early  morning  of  Friday.  The  officer  hailed  him  on 
tlie  approach  of  the  bridge  on  the  Bolt  Line  railroad,  near  tho 
Kansas  State  line,  inquiring  what  ho  was  doing  out  so  late  that 
niglit.  After  a  moment's  conversation,  and  without  warning, 
the  defendant  fired  his  revolver  at  the  officer;  the  ball  passing 
tlirnngh  a  portion  of  his  clothing  and  grazing  his  clnb  and  scab- 
bnrd. 

The  defendant  relied  upon  an  aJihi,  ITe  testified  that  he  spent 
r.ll  that  night  at  the  pool  room  of  John  Talbott;  that  T)e  Wolf, 
a  mechanic,  was  there  repairing  the  tables,  and  that  Talbott  had 
ein))lnyed  him  to  assist  about  the  place,  and  to  remain  there  all 
niiiht,  because  there  Avere  no  locks  upon  tho  door;  that  Talbott 
left  the  money  with  him  to  pay  Do  Wolf  when  ho  finished  tho 
job;  that  ho  remained  and  did  pay  Do  Wolf.  Talbott  testi- 
fied that  when  he  left  the  room  that  night,  he  loft  Taylor,  tho  de- 
fendant, in  charge,  with  money  to  pay  Do  AVolf ;  that  it  was 
then  between  twelve  and  one  o'clock.  Do  Wolf  fully  corrobo- 
rates Talbott  as  to  tho  fact  of  defendant's  presence  at  the  pool 
room  that  night,  and  says  he  left  defendant  there  Avhen  he  fin- 
ished the  tables;  that  he  thinks  it  must  have  been  two  o'clock, 
from  the  fact  that  the  street  cars  stopped  running  at  twelve 
o'clock,  and  he  thinks  they  had  been  stopped  at  least  two  hours. 


i 

i    I  I 

I    H  : 


^  ' 


56 


AMERICAN  CRIMINAL  REPORTS. 


This  poul  rrxm  vcas  at  the  comer  of  Xinctocntli  and  Walnut 
Btroets.  ]f  tlii>=s  evidonee  is  to  be  credited  it  allows  a  complete 
alihi,  as  it  covers  the  time  of  the  rape,  fully,  and  places  defend- 
ant at  a  considerable  distance  from  the  place  of  its  perpetration. 
The  other  facts  and  the  insti'uctions  complained  of  will  ap- 
pear ill  tlu;  further  discussion  of  the  case. 

I.  There  was  sufficient  evidence  to  justify  the  verdict  of  the 
jury,  if  credited  by  them. 

II.  Counsel  fur  defondaiit,  in  the  cross-examination  of  the 
State's  witness  ^Miller,  asked  this  (juestion:  "After  this  thing 
occurred,  were  you  not  arrested  f(tr  stealing  billiard  balls  fnim 
Boulander's  saloon,  rind  sent  to  jail  ?''  On  the  objection  of  the 
prosecuting  attorney,  the  court  ruled  the  witness  need  not  an- 
swer. The  defendant  was  entitled  to  have  the  question  an- 
swered The  c\ideiit  pur])ose  of  the  interrogatory  was  to  dis- 
credit the  witness.  In  such  a  case  the  mere  fact  that  it  touched 
upon  a  conviction  which  must  have  been  of  record  is  not  sulH- 
cieii^  to  exclude  it.  Wharton,  Crim.  Ev.,  in  see.  474-,  states  the 
rule  as  follows:  'Vin  a  leailiiig  case,  Lord  Enenborough,  ('.  J., 
compelled  a  witness  to  aiHwer  whether  he  had  not  been  confined, 
for  theft,  in  jail;  and,  or,  the  witness's  appealing  to  the  vuurt, 
said,  'If  you  do  not  an>«'.vor  I  will  send  you  there.'  In  this  coun- 
try there  has  been  some  hesitation  in  jiermitting  a  question  the 
answer  to  Avhicli  not  merely  imputes  disgrace,  but  touches  on 
matters  of  record;  but  the  tendency  now  is,  if  the  question  be 
given  for  the  purpose  of  honestly  discrediting  a  witness,  ti>  re- 
quire an  answer."  Citing  Urnl  v.  People,  42  X.  Y.  270;  Com. 
V.  Bunner,  97  ^fass.  587,  and  many  other  cases. 

This  court  in  Slnic  v.  Miller,  100  ^\o.  00(i,  in  an  opinion  by 
Sherwood,  Judge,  adopted  the  rule  as  stated  by  Wharton  as  fol- 
lows: "Was  error  commitred  in  refusing  permission  to  the  de- 
fen.hint  to  interrogate  Mortimer  as  to  whether  lie  had  not  l>een 
in  the  penitentiary  two  or  three  times?  In  order  successfullv  to 
ask  and  have  answered  such  a  question,  it  seems  to  he  unneces- 
sary to  pro<luce  a  record  of  conviction.  Such  record  onlv  has  to 
be  produced  where  it  is  ]u-oposod  to  show  that  the  witness  has 
l)een  convicted  of  some  crime,  in  which  on^o  the  judgment  of  con- 
viction is  the  only  competent  evid(>nce.  li  is  otherwise,  however, 
where  the  question  is  asked  the  witness  for  ilie  purpose  of  hon- 


THE  STATE  v.  TAYLOR. 


57 


estly  discrocliting  him ;  then  the  question  is  competent.  This  is 
the  tendoncy  of  adjudication  in  tliis  country."  Wliarton,  Crim. 
Ev.  (rth  ed.),  sec.  474,  and  cases  cited;  Cliambcrlain's  Best  on 
Ev.  (Ed.  1893-94),  p.  002,  American  Xotes,  2;  1  Bishop, 
Criiii.  Proc,  sec.  1185. 

But  it  is  iisisted  that,  notwitlistanding  error  was  committed 
jiy  the  trial  court  in  not  pci-mitting  the  witness  to  answer  this 
question,  still,  inasmuch  as  the  court  permitted  defendant  to 
show  in  the  subsequent  examination  of  this  witness  that  he  ivas 
in  the  comity  jail,  and  had  conversati<m  with  one  Clark,  a 
])risoner  therein,  that  the  error  is  cured,  on  the  ground  that 
"although  a  competent  question  is  at  first  excluded,  still,  if  upon 
further  examination  the  pai'ty  receives  the  full  benefit  of  the  cx- 
rhulod  question,  he  has  no  rause  of  complaint."  An  examina- 
tion of  the  record,  however,  will  <Hsclose  that  the  court  only  per- 
mitted him  to  be  asked  that,  "while  in  the  jail,  if  he  met  a  man 
by  the  name  of  Clark,  a  prisoner  in  the  jail."  To  this  he  an- 
swered, ''there  was  a  man  in  jail  by  the  name  of  Clark,  but  I 
ddu't  remember  his  first  name.''  IFo  was  also  asked  as  to  his 
c<tnversations  Avith  Clark  about  defendant,  but  nowhere  in  his 
examination  or  elsewhere  in  the  record  is  the  qunry  whether  he 
was  arrested  "f(tr  stealing  Bcuilaiuler's  billiard  balls,  and  sent 
to  jail"  for  that  cause.  For  aught  that  appears  to  the  contrary 
in  his  evidence,  it  might  have  be(>n  w"ll  argiu^d  that  he  was 
merely  a  visitor  to  the  jail  to  see  Clark.  IMerely  being  in  a  jail 
is  quite  a  different  thing  from  being  sent  to  jail  for  theft.  The 
rulings  positively  excluded  the  evidence  Avhieh  tended  to  dis- 
credit the  witness,  and  the  subsequent  examination  did  not  sup- 
ply i,  aiul  did  not  cure  it. 

When  it  is  considered  that  this  witness  is  the  principal  one 
by  whom  the  State  identified  the  defendant,  in  the  inuuediate 
vicinity  of  the  crime  at  two  o'clock  that  night,  it  can  readily 
be  seen  how  impoi'tant  to  defendant  was  the  right  of  a  searching 
cross-examinati*m  and  any  evidence  that  might  discredit  him. 
The  crucial  test  of  any  witness  is  his  cross-examination.  It  will 
not  do  to  deprive  one  on  trial  for  his  liberty  of  this  privilege, 
and  then  denominate  it  in  this  court  as  "harmless  error."  Green- 
leaf,  Ev.  (15th  ed. ),  sec.  440.  Error  is  "presumptively  preju- 
dicial," and  it  devolves  upon  the  party  asserting  its  harmless- 


TS.I 


■t 


AMERICAN  CRIMINAL  REPORTS. 


I 

ll 

■j 

'-' 

■■    i; 

■  i 

,>;' 

noss  to  sliow  it  affiniiatively.  Tliis  is  the  nile  in  this  court. 
Uaires  v.  Stoch  Yards  Co.,  103  ^lo.  CO;  Dayharsh  v.  Railroad, 
103  Mo.  570 ;  McGowan  v.  Si.  Louis  Ore  and  Sled  Co.,  109  Mo. 
518.  The  Supreme  Court  of  the  United  States  has  gone  further 
S'till  and  asserted  that  "i":  must  appear  so  dear  as  to  he  beyond 
doubt  that  the  error  did  not  and  could  not  liave  prejudiced  the 
party's  rights."  Decry  v.  Cray,  5  Wall.  807;  Smith  v.  SJioe- 
mal-er,  17  Wall.  G30;  Uilmerv.  Iliglcy,  110  U.  S.  47;  liailroad 
V.  O'Brien,  119  U.  S.  99. 

In  view  of  the  fact  that  this  is  a  criminal  charge  of  the  most 
heinous  character,  one  for  which  the  ])enalt}'  may  he  death  \inder 
onr  statute,  and  in  view  of  the  principle  involved,  we  are  con- 
strained to  hold  the  refusal  to  permit  the  question  to  he  answered 
was  reversible  error,  ^fuller  r.  Iluspital  Ass'n,  73  Mo.  242; 
Slate  V.  Leabo,  84  .Mo.  108;  ^7r//c  v.  Cox,  07  Mo.  392. 

III.  When  the  witness  Copeland  was  on  the  stand,  the  prose- 
cuting attorney  asked  him  if  the  defendant  got  anything  from 
liim,  and  he  answered  "he  got  ten  cents."  This  is  assigned  as 
error,  because  tending  to  prove  a  distinct  oifense  from  that 
charged  in  the  indictment.  The  answer  Avas  clearly  admissible, 
as  part  of  the  res  gcsla',  and  in  such  a  case  it  is  not  incompetent 
because  it  tended  to  show  defendant  guilty  of  robben-  as  well 
as  rape.  Stale  v.  Grccnwadc,  72  Mo.  298;  Stale  v.  Umlerwood, 
75  Mo.  230. 

IV.  There  is  no  merit  in  the  eighth  assignment.  The  witness 
answered  the  qiiestion  widiout  hesitation,  and  the  trial  court 
very  properly  refused,  under  these  circumstances,  to  permit  coun- 
sel to  badger  her  and  require  her  to  answer  whether  she  had  told 
the  truth  on  a  former  trial.  Siudi  a  mode  of  cross-examination 
is  only  tolerable  when  a  witness  is  contumacions.  The  facts  in 
this  case  did  not  warrant  such  a  course. 

V.  The  court  did  not  err  in  refusing  to  instruct  the  jury  that, 
in  arriving  at  their  verdict,  they  should  not  consider  the  testi- 
mony of  Officer  Thomas  as  tending  to  ])rf>ve  the  offense  charired 
in  the  indictment,  nor  was  there  error  in  receiving  his  evidence 
to  the  effect  that  he  met  defendant  on  the  night  of  the  commis- 
sion of  the  rape,  in  the  southern  iH.rtirm  of  the  city,  and  that 
defendant,  without  provocation,  slif,t  at  him.  It  Avas  proper  for 
the  State  to  show  any  and  all  act^  of  the  defendant  that  had  a 


THE  STATE  v.  TAYLOR. 


69 


tc'iulciicy  to  prove  his  guilt.  It  is  not  a  question  of  the  weight, 
lull  i1k3  competency,  of  the  evidence.  It  was  competent  as  tcud- 
iii"-  to  rebut  the  alihi.  The  mere  fact  that  the  officer  did  not 
know  that  defendant  was  suspected  or  charged  with  the  offense 
did  not  render  the  acts  and  conduct  of  the  defendant  incompe- 
ttiit.  Shtte  V.  Grant,  79  Mo.,  loc.  cit.  130.  When  the  defendant 
ciK'nuiilcrcd  the  officer  in  his  uniform  and  armed  and  was 
lin'ii'd,  if  guilty,  he  was  conscious  of  the  danger  tliat  mi^rht 
( ii-ii<>  from  arrest,  and  he  evidently  determined,  if  necessary,  to 
kill  tlie  officer  to  prevent  arrest.  If  innocent,  he  had  nothing  to 
four  from  any  office i.  His  conduct  in  thus  eluding  the  officer 
is  strong  evidence  of  his  guilt.  Stale  v.  Moore,  101  Mo.  319,  14 
S.  W.  liep.  182;  1  Bislmp,  Crim.  Troc.  (3d  ed.),  sec.  1219,  and 
cases  cited. 

I)cf(Midant  is  certainly  in  no  position  to  complain  that  the 
cntiit  did  not  instruct  the  jury  that  his  flight  was  evidence  of  his 


<;uilt. 


\'  r.  We  arc  forbidden  to  notice  the  alleged  improper  remarks 
of  tlie  prosecuting  attorney,  because  they  were  not  made  the 
iirniuid  of  an  exception  at  the  time  to  the  court.  The  mere  in- 
(•(ir|)<ir;ition  of  these  renuirks  and  objections  thereto  in  ex  parte 
atlulavits  subsequently  filcil  with  the  motion  for  a  new  trial  does 
not  make  them  proper  matter  for  exception.  We  have  often  so 
ruled  this  ]Miint.  Slate  v.  Howard,  IIS  ;^[o.  127;  Campbell  v. 
J'voph',  109  111.  577.  The  remark,  if  made,  was  not  proper,  and 
CiiiiiKit  receive  the  sanction  of  the  courts. 

Vi  r.  A  rehearing  was  granted  in  this  cause,  in  order  that  a 
full  discussion  of  the  prior  decisions  of  this  court  in  regard  to 
instructions  on  the  subject  of  alifji  might  be  had. 

In  lliis  case  the  court  gave  on  b(>half  of  the  State  the  follow- 
inir  instruction:  "4.  If  the  jury  shall  find  and  believe  from 
tlie  evidence  that,  at  the  time  the  offense  chnri>ed  in  the  indict- 
niciit  was  committed,  if  you  find  that  such  offense  was  commit- 
ted, the  defendant  Avas  at  a  place  otlier  than  the  place  where 
such  fitTcnse  or  crime  was  committed,  the  jury  will  find  defen<l- 
nnt  not  guilty." 

To  the  giving  of  this  instruction  the  defen<lant  then  and  there 
ol)jected  and  duly  excepted. 

The  court  refused  to  instruct  the  jury  as  asked  by  the  de- 


ill 

^«n| 

fM^»H 

m^^' 

'^Mi^HI 

'f™UmHI 

^BmSSw^ 

: 


,1 
ll 


CO 


AMERICAN  CRIMINAL  RKPORTS. 


fondant  in  tlic  following  instructions,  and  dcfoudiint  duly  cx- 


001 


tod ; 


1).  Whon  a  person  on  trial  for  a  orinio  shows  that  ho  was  in 
anotlior  place  at  the  time  ^vllen  the  not  was  connnittcd,  ho  ia 
said  to  prove  an  tilihi  One  of  the  dofonsos  intorpi.sod  hy  tho 
dofoiidant  in  tliis  case  is  what  i^  known  as  an  'alibi :'  that  is,  that 
the  defendant  was  in  another  \  lace  at  tho  time  of  tho  ooniniis- 
sion  of  tho  criiiK>.  Tho  court  iiistrucis  tho  jury  that  such  di>- 
fenso  is  as  proper  and  loiiiliinato,  it  pmvod,  as  any  other,  aiul 
all  cvideiic(>  hcariiii;'  on  that  point  should  ho  oarorully  consid- 
ered hy  tho  jury,  if,  in  view  of  all  tho  ovidonco,  the  jury  havo 
a  roasoiiahio  douht  as  to  whether  defeudant  was  in  some  other 
place  when  llie  crime  was  committed,  they  should  jjive  him  tho 
heuefit  of  the  <louht,  aiul  acquit  him.  As  roijards  tho  defense  of 
an  aJihi,  the  jury  ar(>  iuslruclo(I  liiat  tho  dofomlant  is  not  re- 
quired to  prov(.'  that  del'eus(>  li(youd  a  reasomdde  douht  to  eulitlii 
him  to  an  ac(iui(tal.  It  is  siillicieut  if  tho  dofeiiso  npoii  tho  point 
raises  a  reasouahle  douht  of  his  ])reseiu'o  at  tho  time  and  place 
of  the  connuission  of  the  crime  charn<Ml. 

''The  court  further  instructs  tho  jury  that,  if  they  Ixdiovo 
from  the  evidence  that  at  the  time  of  the  alleiiivl  i\\\\o  anil  at  tin* 
hour  the  crime  was  cdunnittod,  the  defendant,  Taylor,  was  an 
the  hilliard  room  of  ddhn  Talliott,  as  te-liti(>d  to  hy  some  of  Ch^- 
fendaut's  witnesses,  and  was  not  present  at  tho  scorio  of  (ho  I'apo 
at  the  time  of  tlie  conmiission,  then  you  must  acquit  llu'  dofotul- 
ant. 

''The  jury  are  instructed  that,  if  you  entertain  a  reasouahln 
donl)t  as  to  whether  or  not  the  defendant,  Taylor,  was  at  Tal- 
hott's  hilliard  room  or  at  tho  scene  of  (ho  ra|)o  at  th(>  time  tho 
rape  was  counnitted,  tlu>u  it  was  your  sworn  duty,  under  (ho 
law,  to  give  the  heneiit  of  the  douht  to  the  dofeiulant." 

'•lb.  The  jury  are  iustruoted  that,  if  you  entertain  a  reasou- 
ahle douht  as  to  defendant's  guilt,  he  sliould  he  acquit  led,  al- 
though the  jury  might  not  he  ahle  to  fiu<l  that  tho  alibi  was  fully 
proved." 

The  court  had  previously  given  fu-  tho  State  thi.s  instruction  : 
*'0.  The  court  instruct-;  the  jury  that  heforo  th(>y  can  convict 
the  defendant  they  nnist  he  <atislied  nf  his  guilt  hoyojul  a  roa- 
sonahlo  douht.     Such  douht,  to  authorize  an  acquittal  n[)on  tho 


■',1 


'  5 


THE  STATE  V.  TAYLOK. 


61 


H  1 


n'nf<miil)lo  (loul)t  nloiK',  iimst  1)0  a  sulistimtial  doubt  of  the  de- 
fciidiiut's  guilt,  wilh  II  view  to  all  the  (jvidcucc  iu  the  case  and 
iiof  a  more  possibility  of  tlio  dcfcudaui's  innooouce." 

A  proper  uudorstauding  at  the  outset,  of  the  nature  of  the  de- 
fense of  (tlihl,  will  enable  \ks  to  reach  a  more  satisfactory  con- 
chi-iion. 

However  much  (his  ])lea  has  been  abused;  however  great  the 
iiiei'ulive  to  perjury  this  defeusc!  has  proven,  in  its  practical 
a]i]dieation,  it  is  fniiiided  upon  the  universal  law  of  nature  that 
li;e  same  body  or  persnu  cannot  occupy  two  ineousistent  posi- 
tii  lis  at  <iiie  and  the  same  time.  Thus,  a  defeiulant  cannot  at 
the  time  alleged  have  been  committing  a  crime  in  St.. Louis  if 
ill  that  time  be  were  in  Kansas  City.  Jlis  innocence  is  demon- 
si  rated  liv  proving  a  fact  which  renders  it  impossible  for  him 
to  have  been  guilty.  The  plea  its(df  stands  upon  sure  founda- 
tion, but  its  abuse  has  led  some  judges  to  denounce  it  as  a  de- 


fel 


ise 


jUfV, 


iften  attem])ted  by  contrivance,  subordination  and  per- 
ind  to  re(piire  that  the  evidence  to  sustain  it  should  be 
ibjecled  to  the  most  rigid  scrutiny.     Jt  long  ago  fell  into  dis- 
fa\<ir  with  the  jieople,  an<l  gave  Charles  Dickens  the  material 
t  of  which  he  constructed  in  part  his  famous  case  of  Jiardrll 


SI 


oill 


'/•.  I'iclnrlr/,'.  Jt  ■will  be  rememberecl  that  the  author  causes  (dd 
Weller  to  lament  that  Mr.  Pickwick  had  n-it  relied  on  an  alihl, 
aii<I  makes  him  say  that  he  had  three  or  four  coachmen  ready  to 


sw 


ear  (o  it. 


liiil,  notwitlistanding  the  popular  prejinlice  against  the  plea 
an  i  niiiwithstanding  the  satire  of  novelists  and  essayists,  as  al- 


renily  said,  in  the  very  nature  ot  the  criminal  prosecution,  it  is 
a  legitimate  defense  and  it  flows  naturally  from  tlu;  rule  that 
re(|iiires  the  State  to  establish  the  guilt  of  the  aceuseil  beyond  a 
reasomilile  doubt.  In  every  criminal  i)rosecution  the  State  as- 
siiiiies  Id  show,  as  an  essential  (dement  in  liia  guilt,  the  pre-;ence 
of  the  defendant  at  the  commission  of  the  crime.  Tliis  being 
true,  a  sim|ile  j)lea  of  not  guilty,  without  other  further  plea, 
])uts  the  State  to  the  ])roof  (<f  his  ])resence.  If  the  State  fails  to 
show  that  the  defendant  \vas  present  when  the  crime  was  com- 
mitted, irlicn,  u-'ilhoxit  his  presence,  it  is  impossible  for  bin.  to 
be  guilty,  the  prosecution  must  fail. 

Law  writers  in  discussini>'  the  evidence  to  sustain  this  defeii'^e 


\\-  3 


kmmB.oiii/&im 


^atW  ll'fcia'' 


i|     mm  \m&f 


62 


AMERICAN  CRIMINAL  REPORTS. 


liavc  often  inaecuratoly  stated  that  tlic  ovidonoe  of  the  alibi 
must  cover  the  entire  time  within  which  the  crime  conhl  have 
been  committed  MiJJcr  v.  People,  39  IlL  457-40-t.  If  by  this 
is  meant  that  such  cvi(h-iico  if  true  wouhl  be  absolutely  conclu- 
sive of  innocence,  it  might  be  true;  but  to  make  the  evidence 
competent  no  such  perfect  proof  is  required,  nor  is  such  an  abso- 
hile  demonstration  necessary  to  entitle  a  defendant  to  his  ac- 
quittal, as  we  shall  abundantly  show  from  the  authorities.  The 
weight  of  the  evidence  tending  to  prove  an  alibi  is  to  be  do- 
terminod  by  the  jury  and  altlMUgh  it  falls  short  of  absolute  con- 
victiim  of  its  truth,  still,  if  it  raises  in  their  minds  a  reasonable 
doubt  of  the  presence  of  the  defendant  at  the  commission  of  the 
erime,  he  is  entitled  to  an  acquittal,  and  it  is  not  material 
Avhetlicr  this  doubt  arises  from  the  defect  in  the  evidence  of  the 
State,  or  tlie  evidence  of  the  defendant  in  rebuttiil. 

Ill  People  V.  Fang  Ah  Sing,  O-t  Cal.  253,  it  was  said:  "The 
ciinimission  of  a  criminal  offense  implies,  of  course,  the  presence 
of  the  defendant  at  the  necessary  time  and  place.  Proof  of  an 
aVibi  is,  therefore,  as  much  of  a  traverse  of  the  crime  charged  as 
any  other  defense,  a.id  proof  tending  to  establish  it,  though  not 
clear,  may,  nevertheless,  with  the  other  facts  of  the  case  raise 
doubt  enough  to  produce  an  acquittal."  This  statement  of  the 
law  by  the  Supreme  Court  of  California  received  the  unqualified 
and  unanimous  sanction  of  all  the  judges  of  this  court  in  Stale 
V.  Howell,  100  .Mo.  G2S. 

In  Stale  v.  Lewis  (1878),  G9  :N[o.  92,  the  defendant  ashed  the 
trial  court  to  instruct  the  jury  that,  if  they  had  a  reasonable 
doubt  that  the  defendant  was  absent  at  the  time  the  homicide 
was  committed,  they  should  acquit  him,  but  it  was  refused  and 
this  court  all  concurred  in  reversing  the  ease  for  this  reason 
alone. 

In  Slnle  v.  Wonlard,  111  ]\[o.  248,  this  divisioii  all  eoneurroi' 
in  holding  that  "if  the  defendant's  evidence  is  suihcient  to  raisn 
a  reasonable  doubt  of  his  presence  at  the  commission  of  the 
crime,  or  if  the  State's  evidence  is  so  defective  as  to  raise  n  rea- 
sonable doubt,  or  if,  taking  all  the  evidence  on  both  sides,  there 
is  a  reasonable  doubt  of  the  defendant's  guilt,  he  is  entitled  to 
an  acquittal. 

In  State  v.  Jennings,  81  'Mo.  1S5,  this  court  held  that  the 


'— -««ih 


THE  STATE  v.  TAYLOR. 


68 


bunion  of  GstaLHsliing  an  alibi  rcstcJ  upon  tlio  dcfondant  and  lio 
nnist  sustain  it  by  a  preponderance  of  tbe  evidence.  In  tbe 
IIowcll  Case,  100  Mo.  C28,  tbe  Jennings  Case  was  overruled  in 
tei'ins,  and,  we  tbink,  correctly.  Tbe  rule  in  tbe  Jennings  Case 
required  a  defendant  to  prove  bis  innocence  and  cannot  be  sus- 
tained on  principle.  Alibi  is  not  an  extrinsic  defense.  It  is  a 
traverse  of  tbe  material  averments  of  tbe  indictment  "tliat  tbe 
(Icfendant  did  tbon  and  there  tbe  particular  act  cbargod.'' 
1  IJisbop,  Crim.  Proc.  (3d  ed.),  sec.  10G2;  Wbarton,  Crini.  Ev., 
soe.  333. 

We  are  aware  tbat  some  courts  bave  required  tbe  defendant 
to  cstablisb  bis  alibi  by  a  preponderance  of  ilie  evidence;  but  in 
our  opinion  sucb  a  rule  is  contrary  to  tbe  presumption  of  inno- 
coii('(>,  to  wbicli  every  defendant  is  entitled  in  a  criminal  prose- 
cut  inn,  and  to  tbe  rule  tbat  requires  tbe  Stato  to  establisli  bis 
fiuilt  beyond  a  reasonable  doubt.  Tbe  burden  is  on  tbe  State 
and  must  remain  on  it  tbrougbout  tbe  triab  Tbe  decisions  in  tbe 
Lewis,  IIowcll  and  Woulard  Cases  are  in  barmony  witb  tbe  rule 
laid  down  in  many  otber  courts,  and  by  approved  text  writers. 

1 11  Slate  V.  Waterman,  1  Xev.  543,  it  is  said :  ''Tbe  rule  of 
liuv  and  of  common  sense  is,  tbat  wbere  tbere  is  a  reasonable 
doubt  as  to  wbetber  a  prisoner  bas  committed  tbe  act  or  offense 
witb  wbicb  be  stands  cbarged,  be  must  be  acquitted,  wbetber 
that  doubt  arises  from  a  defect  in  tbe  evidence  introduced  by  tbe 
State  or  from  tbe  evidence  introduced  in  rebuttal  by  tbe  defend- 
ant." French  v.  State,  12  Tnd.  670;  Adams  v.  State,  43  lud. 
373 ;  Binns  v.  State,  4G  Ind.  311 ;  Howard  v.  State,  50  Ind.  190. 

In  V,'<,Jl-er  v.  State,  42  Tex.  3(50,  Cbiof  Justice  Roberts,  in  bis 
usual  clear  style,  states  tbe  law  on  tlie  subject  as  follows:  "Tbe 
trial  court  instructed  tbe  jury  as  follows:  'Tlir  burden  of  prov- 
ing tbat  be  was  elsewbero  is  cast  upon  bim.  If  tbe  defendant 
has  adduced  evi^Vuco  to  tbe  entire  satisfaction  of  tbe  jury,  tbat 
I'll  tbe  niji,bt  the  murder  is  cbarged  to  bave  been  cunanitted,  tbat 
be  was  at  SO  great  a  distance  tberefrom,  or  tbe  time  was  sucb  as 
to  make  it  impossible  for  bim  to  bave  committed  tbe  itTense, 
then  tbe  deftMidant  must  be  acquitted.'  "  Tbe  learned  cbiof  jus- 
tice said  as  to  tbis  instruction:  "'riiis  cbarge  was  well  calculated 
to  convey  tbe  idea  to  tbe  ju^'V  tbat  tbe  ease  of  tbe  State  was  made 
out  j)y  tbe  dying  declarations,  Svortby  of  the  same  credit  as  other 


J. 
11.  ?■■ 


:Vi  aft 


1;  ' 


U 


AMERICAN  CRIMINAL  REPORTS. 


cvidoiico/  subject  to  bohig  .Icfcatful  nloiic  by  the  dcfoiKbrnt  pvov- 
iiv,  lioyond  a  reasonable  (loul)t,  or  to  a  iiiornl  certainty,  or  'to 
tlioir  entire  satisfaction,'  tliat  it  was  not  possible  for  Walker  to 
have  been  at  Ihitler's  when  lie  was  killed.  It  makes  an  alibi  a. 
(Icfonse  in  the  nature  of  a  plea  of  confession  and  avoidance  in 
a  civil  suit ;  whereas  it  is  not  a  defense  at  all  in  any  other  senso 
than  iis  rebutting  evidence  tending  to  disprove  the  fact  alleged 
in  the  iiulictnient,  that  Walker  kil]e<l  Hutler,  the  burden  of  prov- 
ing wliich  allegati  )n  rests  on  the  State  throughout  the  whole 
trill),  and  cainiot  be  changed,  so  far  as  the  action  of  the  jury 
upon  the  evidence  is  concerned,  by  anything  short  of  an  admis- 
sion ui)nn  the  record,  if  such  a  thing  woubl  un.ler  any  circum- 
stances be  a  i)roper  jtroeeeiling.  .  .  .  The  obvi  ms  error  in 
the  charge  consists  in  furnishing  the  jury  with  an  artificial  rule 
as  to  the  degree  in  the  strength  of  their  conviction  .  .  .  con- 
cerni!ig  the  proof  of  the  alihi,  before  it  should  be  allowed  to  have 
any  influence  on  their  minds  in  disproving  the  fact  that  Walker 
was  the  person  who  shot  and  killed  liutler;  whereas  the  rule  of 
law  is  that  such  evidence  of  an  alihi  should  only  be  of  such 
weight  as  to  produce  upon  the  minds  of  the  jury  a  reasonable 
doubt  of  the  fact  a.lirmed  by  the  State,  that  Walker  was  the  man 
Avho  shot  Pnitler.  Such  a  doubt  might  arise  in  their  minds  by 
the  evidence  tending  to  prove  the  alihi  before  they  had  arrived 
at  a  moral  certainty  as  to  the  truth  of  the  alihi." 

In  John.'ion  v.  State,  21  Tex.  App.  nOS  (ISSO),  Judge  Hurt 
reaffirms  the  rule  laid  down  by  Chief  Justice  Tvoberts,  and  con- 
cludes his  opinion  with  the  remark:  "We  desire  simply  to  ndd 
that  it  is  well  settled  in  this  State  that  the  burden  of  proving  an 
alihi  is  not  on  a  defendant;  that  an  alilii  is  an  attack  on  the 
presence  of  the  defendant  at  the  ]dace  of  the  crime  and  hence  an 
attack  on  guilt."  To  the  same  effect,  also,  are  the  fdlnwing 
cases:  ro?e/-  v.  State,  IG  Ohio  St.  SS.*] ;  Pollard  r.  State,  ',?>  ^Miss. 
410;  Milter  v.  People,  39  111.  4.57;  IIopps  v.  People,  ?,1  111. 
30.'3;  Watson  V.  Commomeealtli,  95  Pa.  St.  41S;  Turner  v.  Com- 
monwealth, 80  Pa.  St.  U;Lan(lis  v.  State,  70  Gi.  652 ;  Chappel 
V.  State,  7  Cold.  (Tenn.)  92;  State  v.  Hardin,  46  Iowa,  023; 
State  V.  Jai/nes,  78  X.  C.  504. 

Indeed,  we  have  found  but  two  States  and  one  Territory  com- 
mitted to  the  doctrine  that  an  alihi  must  be  established  bv  tho 


atlM 


THE  STATE  v.  TAYLOR. 


66 


(Icfcndant  by  n  prcpoiulcvnuce  of  the  evidence,  and  they  are 
Tn\v;i.  Illinois,  and  Xcw  ^Mexico. 

Adhering!:,  tlien,  to  the  rule  that  the  accused  is  entitled  to  an 
^(•(luittiil  if  the  evidence  as  to  the  nlihi  raises  a  reasonable  doubt 
ill  I  lie  minds  of  the  jury,  was  there  error  in  the  giving  and  rc- 
fiisil  of  the  instructions  i 

1'lie  attorney-general,  in  an  able  and  exhaustive  brief,  insists 
l]i;it  ilicre  was  no  error  in  the  instructions.  If  we  understand 
his  position,  it  is,  /ird,  that  it  is  unnecessary  for  the  court  to  in- 
striut  spccitically  upon  the  subject  of  alihi  if  it  has  otherwise 
i.i\(  11  a  correct  instruction  on  reasonable  doubt,  with  a  view  to 
;ill  the  evidence  in  the  case;  second,  that,  even  if  required  to  iu- 
-irnct  on  allhl,  the  instructions  given  in  this  case  were  consist- 
t  lit,  iiiid  announced  the  correct  nile. 

It  was  with  a  view  to  the  review  of  the  cases  in  this  court 
iliiit  a  rehearing  was  granted.  Section  1208,  lievised  Statutes 
<if  1SS!),  provides,  among  other  things,  that  '"the  court  must  in- 
-iriict  the  jury,  in  writing,  upt>n  all  ipiestions  of  law  arising  in 
tlie  cMse  which  are  necesary  for  their  inforniatir)n  in  giving  their 
vci'lit't;  and  a  failure  to  so  instruct  in  cases  of  felony  shall  be  a 
p  1(1(1  caiisc,  when  the  def(>ndant  is  found  guilty,  for  setting 
;i-i(le  the  verdict  of  the  jury  and  granting  a  new  trial."  This 
section  was,  in  spirit,  the  reiteration  of  a  rule  announced  over 
and  over  again  by  this  court,  beginning  with  Hardy  v.  Slate, 
7  .Mo.  008,  and  extending  to  the  present  time. 

In  view  of  the  conflict  of  authority  as  to  the  burden  of  proof 
ii-  to  an  alibi  as  to  the  amount  of  proof  required  to  justify  or  re- 
•inire  an  ac(piittal,  one  would  hardly  aflfirm  it  is  not  a  question  of 
law  arising  in  a  case  where  there  was  evidence  to  sustain  it. 
That  it  has  been  deemed  a  proper  subject  for  instruction  by  the 
liii:liest  courts  of  the  lam^  will  not  be  denied,  in  view  of  the 
aiiKiunt  of  discussion  that  can  be  found  in  the  text-books  and 
adjudicated  cases.  If  a  question  of  law,  the  measure  of  duty  is 
iixed  by  the  statute.  When  learned  courts  disagree  as  to  the 
pr(^>|)er  instruction  to  give  on  tliis  subject,  it  can  hardly  be  as- 
sumed that  a  jury  of  twelve  will  be  able  to  reconcile  their  pre- 
conceived opinions  in  the  absence  of  an  authoritative  declara- 
tion by  the  court  hearing  the  cause. 

If  it  is  the  law,  as  we  assume  it  to  be  from  the  adjudications 
Vol.  XI -5 


It;; 


\ivmf,.'- 


I 


I 


QQ  AMERICAN  CRIMINAL  REPORTS. 

of  llil=  court,  that,  if  tlic  evidence  tending  to  prove  nn  allh!  13 
Piifllcioiit  to.  mill  does,  gciipvate  a  roasonnl)lo  doubt  of  defendant's 
giiilr  in  t!io  minds  of  tlie  jnry,  tlioy  nnist  acipiit  liini,  surely  no 
eiili";lit<'MC(l  svstcni  of  jurisprudence  Avould  deny  one  on  trial  for 
111-  life  or  liberty  tlio  bcneCit  of  tliis  benign  rule  of  Iftw. 

TUh  court  lias  licretoforo  aligned  itself  on  the  affirmative  side 
of  this  ])rnposition,  even  in  the  absence  of  a  stjituto.  Thus,  in 
Slate  r.  Sl^nnim,  02  .Mo.  5!)7,  where  no  instruction  was  asked, 
the  court,  through  Wagner,  .Judge,  said:  *Mn  Slafe  v.  MaUicws, 
20  ]\lo.  55,  it  was  expressly  adjudged  that  it  is  the  duty  of  the 
court  ill  all  criiniiial  cases  to  instruct  the  jury  as  to  the  law; 
that  if  the  instructions  offered  are  objectionable,  the  court  shoull 
proceed  to  give  such  a-  the  law  requires." 

Jn  Stale,  v.  Brnn.^trttcr,  05  ]\lo.  141),  this  court  reversed  the 
cause,  because  the  circuit  court  failed,  of  its  own  motion,  to  in- 
struct u])on  all  the  grades  of  the  otiense  to  which  the  evidence 
was  applicable.  This  case  was  limited,  by  Stole  v.  KiJgorc,  70 
'Mn.  55s,  to  the  grades  of  i>ffense. 

Jn  Stale  v.  Ihvils,  73  !Mo.  592,  the  defendant  testified  In  his 
own  behalf.  His  testimony  tended  to  show  he  was  guilty  of  a 
lower  grade  of  homicide  than  nninlcr  in  the  first  degree,  of 
which  he  was  convicted ;  but  the  trial  court  did  not  instruct  mi 
the  lower  grade,  and  this  court  reversed  the  case  upon  that 
ground  alone.  In  Slate  v.  Palmer,  88  Mo.  508,  it  was  re- 
asserted. 

In  Slalc  V.  Brooks,  02  !^[o.  542,  in  a  most  exhaustive  discus- 
sion of  this  particular  question,  Sherwood,  Judge,  in  his  dis- 
senting opinion  reviewed  all  the  cases  in  this  State,  and  favored 
the  reversal  of  that  cause  for  the  failure  of  the  court  to  instruct 
the  jury  upon  the  law  of  extra-judicial  confessions,  hut  the  ma- 
jority of  the  court  held  that,  as  to  collateral  matters,  defendant 
must  ask  the  instruction  if  ho  desired  it.  Sfnle  v.  Patrick,  107 
Mo.  117;  Stale  v.  Ilenson,  100  Mo.  GO;  Slate  v.  Moxley,  102 
Mo.,  he.  c«<.  392. 

But  this  court,  in  State  r.  Sidiiei/,  74  Mo.  390,  held  that  tlio 
failure  of  the  trial  court  to  instruct  the  jury  n]ion  the  considera- 
tion to  be  given  an  alibi,  was  reversible  error  of  itself. 

In  Slate  v.  Kelly,  73  Mo.  008,  the  court  had  sustained  the  pro- 


«»■■ 


THE  STATE  r.  TAYLOR. 


6T 


nriofy  of  nn  instniction  for  tlio  State,  to  tlio  cfTcct  tlint  rccont 
itii.-sc-ision  of  stolon  pvoporty  wan  prima  fade  vy'iAonco  of  i>nilt, 
imd,  if  not  satisfnctitrily  oxplainod,  bocnnie  conclnslvo,  but  licM 
lliiit  this  presmniptinu  wns  <lis[)utnltle  and  eoiild  not  bo  irhulted 
\)\-  ('\  idcnoo  of  jTood  cliavactor.  In  tlic  Sidncij  Case  good  cliar- 
iii'icr  wiis  not  otVcrod,  bnt  ovidonco  of  an  alihi  was,  and  it  Mas 
licld  tliiit  ovidcnpc  of  an  alihi  was  oquallv  potential  in  vobntling 

the  ])i'(snniption  of  gnilt  as  g 1  cbnractcM'.     Slicrwood,  C.  J., 

siiid  :  "in  this  easo,  as  in  tiiat  {Slate  v.  Kclhj),  thoro  was  no  tos- 
tiiiiniiy  as  to  good  charactor,  but  there  was  tostiinony  of  equiva- 
lent foroe  ami  potoufy;  Icslimonij  of  an  alibi;  Icslitnovij  which 
hiiih'il  h>  rchiil  IJie  accusal  ion ;  Icnliinonij  u'liith,  if  hclirvcd  hij 
II"'  ji'i'!J>  v'cidd  yell  hare  xvarranlod  them  in  acquitling  Ihc 
pris'iiirr.  I>ut  such  testimony  was  altogctlior  ignored  by  the  in- 
-inictidn.  This  was  clearly  erroiu'ous;  for  the  jury  were,  in 
el't'ecl,  told:  'It  is  true  there  is  evidenee  of  an  alihi,  l)ut  you  need 
]iiiy  no  attention  to  that,  and,  if  yitu  liinl  that  defendant  had  the 
slolen  property  in  his  jiossession  reeently  after  the  theft,  then 
let  urn  a  verdict  of  guilty.'  It  is  obvious  tliat  testimony  as  to 
gddd  character,  and  testimony  as  to  the  absence  of  the  prisoner, 
uiu<l  occupy  tlio  same  footing  and  bo  held  in  the  same  estima- 
1io:i,  so  far  as  being  the  basis  for  an  innlniclion."  To  the  same 
eU'ect  were  Stale  v.  Bniin,  'M  Mo.  510;  Slale  v.  Cranlc,  75  ^lo. 
4()G;  Slate  v.  North,  1)5  Mo.  OKI;  Stale  v.  Edwards,  109  Mo. 
315;  all  of  which  were  reversed  be(!ausc  the  court  failed  to  give 
the  defendant  the  benefits  of  his  rebuttal  evidence  and  that  of 
its  own  motion.  Xow,  nil  the  better  considcu'cd  authorities  hold 
that  an  alibi  is  not  an  allirmative,  extrinsic  defense,  "l)at  tncrrhj 
ordiiiarij  evidence  in  rehuilal."  State  i\  lioclrtt,  87  Mo.  OdO ; 
M'aUrr  v.  State,  42  Tex.  loc.  oil.  309 ;  Tolcr  v.  Slate,  IG  Ohio  St. 
5S3 ;  1  liishop,  Crim.  Proc,  sees.  10G2-10CG ;  Stale  r.  Jayves, 
78  N.  C.  504. 

If  proper  to  require  the  trial  courts  to  correctly  instruct  as  to 
its  efl'ect  in  rebuttal  in  a  larceny  case,  why  is  it  not  eqmdly  obli- 
gatoiy  to  instruct  upon  its  bearing  in  a  case  of  rape,  or  any  otlicr 
felony. 

In  State  v.  Lewis,  GO  Mo.  92,  this  court  recognized  the  im- 
jiortaiipe  of  an  instruction  on  the  subject,  notwithstanding  in 


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tl:at  case  the  jury  were  fully  instructed  as  to  a  reasonable  doubt 
upon  the  whole  case.  State  v.  Edwards,  109  Mo.  315.  But  wo 
are  confronted  by  +he  attorney-general  with  the  decisions  of  this 
court  in  State  v.  Eoclcett,  87  Mo.  GGG;  State  v.  Johnson,  91  Mo. 
442 ;  State  v.  Sanders,  lOG  Mo.  195 ;  State  v.  Shroyer,  104  Mo. 
448. 

In  State  v.  RocMt,  this  court,  without  overruling,  but  ex- 
pressly distinguishing  State  v.  Lewis,  held  an  instruction  as  to 
reasonable  doubt  sufficient  ichen  there  ivas  already  an  inslruc- 
tion  on  alihi.  Certainly  this  does  not  conflict  with  any  view  by 
us  herein  so  far  expressed.  But  the  learned  judge  who  wrote 
that  opinion  cites  State  v.  Jennings,  81  Mo.  185,  as  an  au- 
thority, on  the  instruction  as  to  alit)i,  but  that  case  was  unani- 
mously overruled  in  IloweU's  Case,  100  Mo.  G28.  State  v. 
Bockett,  in  so  far  as  it  approves  Jennings'  Case,  is  to  a  like 
extent  overruled  by  Howell's  Case. 

In  State  v.  Johnson,  91  ilo.  442,  the  defendant  was  indicted 
for  rape.  The  court  gave  this  instruction :  "4.  If  the  jury  be- 
lieve and  find  from  the  evidence  that  the  defendant  was  not 
present  at  the  place  and  times  the  alleged  rape  is  stated  to  have 
been  committed,  by  the  prosecuting  witness,  Kate  Farrell,  but 
that  the  defendant,  at  the  time  of  the  alleged  rape,  was  else- 
where, at  another  and  different  place  than  whore  the  alleged 
rape  is  stated  to  have  taken  place  by  said  Kate  Farrell,  then  you 
shoulil  acquit  the  defendant." 

Xow,  this  instniction  is  the  same  in  effect  as  the  number  4 
given  in  this  case.  It  was,  as  stated  by  the  attorney-general, 
approved  by  this  court ;  but  let  us  see  upon  what  the  court  based 
its  decision.  Xorton,  Chief  Justiw,  said :  "The  court  of  appeals 
rcrerscd  the  judgment  of  the  circuit  court,  as  stated  in  the  opin- 
itin,  'because  (in  the  fourth  instruction)  the  jury  were  directed 
to  the  defense  of  an  alihi  in  language  which  would  bo  likely  to 
convey  to  their  minds  the  idea  that  it  was  a  substantive  affirma- 
tive defense  which  must  be  made  out  by  a  preponderance  of  evi- 
dence, an  error  which  was  not  cured  by  the  giving  of  an  appro- 
priate instruction  as  to  reasonable  doubt,  in  its  application  to 
tlie  whole  case.'  The  precise  question  involved  in  the  above 
ruling  was  niled  otherwise  by  this  conrt  in  the  case  of  Slate  v. 
Jennings,  81  Mo.  185,  and  State  v.  Eockett,  87  :Mo.  GGG."    ITo 


THE  STATE  v.  TAYLOR 


69 


then  cites  the  paragraph  of  Judge  Shenvood's  opinion  in  RocTc- 
ell's  Case  already  alhidcd  to. 

The  raUonalc  of  Judge  Norton's  decisiun  is  simply  that,  this 
court  having  held  in  Jennings'  Case  that  the  burden  was  on  the 
dct'cudant  to  prove  his  alibi  by  a  preponderance  of  evidence,  the 
instruction  4,  condemned  by  the  court  of  appeals,  was  not  error 
hoeausc  it  also  required  the  defendant  to  make  that  defense  by 
affinnative  proof. 

JJut  when  the  court  afterwards,  in  Howell's  Case,  unani- 
mously agreed  that  Jennings'  Case  on  this  very  point  was  not 
the  law,  it  swept  the  whole  foundation  from  Johnson's  Case,  and 
destroyed  the  only  ground  upon  which  it  could  possible  stand, 
because  Judge  Sherwood  in  Rockett's  Case  had  expressly  said, 
in  the  line  of  the  general  nile,  that  it  ivas  only  rebuttal  evidence, 
and  not  an  affirmative  defense.  See  State  v.  Reed,  C2  Iowa,  40 ; 
1  Bishop,  Crim.  Proc.  10G2-10G6.  It  must  follow  that  /o/oj- 
S'ln's  Cose,  like  Jennin/js'  Case,  was  overruled  by  Howell's  Case. 
The  instruction  number  4,  given  in  this  case,  is  just  like  the  one 
given  in  Johnson's  Case,  and  the  one  condemned  in  People  v. 
Fung  Ah  Sing,  04  Cal.  253. 

The  attorney-general  denominates  so  much  of  Chief  Justice 
Ray's  opinion  as  approves  the  California  case  as  obiter  dictum. 
This  is  a  misapprehension  of  the  Howell  Case.  This  court 
adojited  the  reasoning  of  the  Su))reme  Coiu't  of  California  con- 
demning an  instruction  which  required  the  defendant  to  estab- 
lish his  alibi  as  an  affirmative  defense.  The  instruction  in  /en- 
nings'  Case  was  in  effect  the  same  as  in  HoiveU's  Case  and  Roch- 
clt's  Case,  and  the  same  as  in  Johnson's  Case  and  Ah  Sing's 
Case.  The  reasoning  condemned  the  principle  involved  in  each. 
Judge  Sherwood,  wiio  had  writtoiji  one  and  agreed  to  the  others, 
Cf»ncurred  in  overruling  the  Jennings  Case.  The  Howell  Case 
was  unanimously  followed  by  this  division  in  State  v.  Woolard, 
111  ^{o.  248.  So  that  the  instruction  number  4  has  been  con- 
demned by  three  decisions  of  this  court,  which  are  irreconcilable 
with  the  decision  in  Jennings,'  Roclett's  and  Johnson's  Cases. 
Inasmuch  as  the  great  weight  of  authority  and  reason  are  with 
Howell's  Case,  we  see  no  reason  for  departing  from  it,  or  ques- 
tioning its  controlling  autlxn-ity,  and  it  must  be  held  that  in- 
struction number  4  given  for  the  State  is  reversible  error,  un- 


70 


AMERICAN  CRIMINAL  REPORTS. 


m 


Bs^ 


iv;   :i 


m 


less  cureJ  by  the  general  instniction  on  reasonable  doubt,  which 
we  imderstand  to  be  the  most  serious  contention  of  the  attorney- 

genei'al. 

Let  us  see  in  what  position  these  two  instructions  left  the  de- 
fendant.    The  one  on  reasonable  doubt  requires  the  jury  to 
acquit  him,  if  they  had  reasonable  doubt  from  all  the  evidence; 
but  the  one  on  alili.  Ids  only  defense,  required  them  to  acquit 
on  that,  only,  if  taey  found  that  defense  to  be  true.    Could  two 
instructions  be  more  inconsistent  and  irreconcilable  ?    The  latter 
excludes  the  reasonable  doubt,  as  to  the  alibi.    As  said  by  Hurt, 
Judge,  in  Johnson  v.  Stale,  21  Tex.  App.  368,  "These  proposi- 
tions are  inconsistent  and  in  direct  conflict.     If  the  burden  of 
proof  is  on  defendant  to  establish  his  alibi  by  a  preponderance 
of  evidence,  then  the  doctrine  of  reasonable  doubt  cannot  pos- 
sibly apply.    Whenever  in  a  criminal  or  civil  case  a  party  is  re- 
quired to  prove  a  fact  (and  this  always  means  by  a  preponder- 
ance of  testimony),  the  reasonable  doubt  does  not  obtain,  and 
cannot  be  applied  to  the  negative  or  opposite  of  such  fact.     If 
A.  be  at  Galveston  at  a  given  time  he  is  guilty,  but  if  at  Houston 
at  that  time  he  is  not  guilty.    The  burden  is  on  A.  to  prove  that 
he  was  at  Houston.    If  this  be  so,  a  doubt  that  he  was  at  Galves- 
ton is  not  in  the  proposition,  because  he  must  prove  that  he  Avas 
at  Houston,  and  this  proof  must  be  made  by  a  preponderance  of 
evidence;  and  a  doubt  that  he  was  at  Galveston  does  not  aid  his 
proof  that  he  was  at  Houston.    On  the  other  hand,  his  proof 
that  he  was  at  Houston  may  not  be  by  a  preponderance  of  the 
evidence,  but  amply  suiEcient  to  raise  a  reasonable  doubt  that 
he  was  at  Galveston."    See  also  Bennett  v.  State,  17  S.  W.  Rep. 
(Tex.)  545. 

In  the  present  case  the  defendant,  to  correct  the  error  of  the 
fourth  instruction,  asked  the  court  to  instnict  that  if  the  evi- 
dence as  to  '>is  alibi  raised  a  reasonable  doubt  as  to  his  guilt 
they  should  acquit  him,  but  the  court  refused  the  instruction, 
clearly  indicating  that  in  its  opinion  a  reasonable  doubt  alone, 
created  by  defendant's  evidence,  was  not  sufficient  to  acquit  him. 
It  will  not  do  now  to  say  that  the  reasonable  doubt  instruction 
cured  the  fourth  given  for  the  State.  The  burden  placed  upon 
the  defendant  to  show  his  presence  elsewhere,  took  away  the  free 
action  of  the  minds  of  the  jury  in  forming  a  reasonable  doubt 


THE  STATE  v.  TAYLOR. 


71 


upon  the  wliole  evidence,  for  the  simple  reason  that  the  evidence 
which  tended  to  establish  his  alibi  was  to  be  excluded  from  their 
consideration  on  that  subject,  and  to  only  become  available  if  it 
established  the  defense  affirmatively. 

The  instructions  are  contradictory  and  the  one  as  to  alibi  er- 
roneous. The  defendant's  ninth  instruction  to  the  extent,  first 
that  it  requires  the  court  to  comment  upon  the  evidence,  was  er- 
I'onoous ;  and  secondly,  so  much  of  it  as  seemingly  required  the 
defendant  to  prove  his  alibi  by  a  preponderance  of  the  evidence 
was  erroneous,  but  so  innch  of  it  as  stated  that  it  was  sufficient, 
if  the  evidence  upon  the  alibi  raised  a  reasonable  doubt  of  his 
presence  at  the  time  and  place  of  the  commission  of  the  crime, 
waj  a  correct  statement  of  the  law. 

Willie  we  do  not  think  the  defendant  intended  to  require  more 
liy  his  instruction,  we  think  the  criticism  of  the  attorney-general 
on  that  instriiction  is  just,  in  that  it  apparently  places  the 
Imvdon  of  proving  the  alibi  on  defendant  as  a  condition  prece- 
dent to  acquittal,  when  a  reasonable  doubt  would  have  sufficed 
fiir  his  acquittal. 

The  attorney-genoral  has  with  great  industry  and  discrimina- 
tion collated  cases  showing  that  a  general  instmction  to  acquit 
the  accused,  ii  they  have  a  reasonable  doubt  of  his  guilt  on  the 
wliolo  f  'idence,  is  sufficient.  Generally  speaking,  this  is  true; 
liiit,  as  was  said  when  this  case  w-as  decided  before:  "It  woiild 
have  been  far  better  for  defendant  had  the  coiul;  said  nothing 
dn  the  subject  of  an  alibi,  for  then  the  general  instruction  of 
reasonable  doubt  would  have  enabled  him  to  have  required  the 
State  to  show  his  participation  in  the  crime  at  the  time  and 
place  charged ;"  but  the  court  in  this  case  was  not  content  with 
such  an  instruction,  but  of  its  own  motion  went  further  and  re- 
quired the  jury  to  find  (of  course  from  defendant's  evidence, 
for  he  alone  offered  testimony  to  show  the  alibi)  as  a  fact  that 
he  was  not  at  another  place,  before  he  was  entitled  to  have  the 
benefit  of  a  reasonable  doubt  as  to  his  alleged  alibi.  The  au- 
thorities cited  are  no  authority  for  the  contradictory  and  damag- 
ing instruction  in  this  case. 

The  case  cited  by  the  attorney-general  to  show  that  it  is  not 
necessary  to  tack  a  reasonable  doubt  clause  to  every  instruction, 
unquestionably  announced  the  rule  that  has  prevailed  in  this 


■^    I 


i  I 


% 


.Ta 


AMERICAN  CRIMINAL  REPORTS. 


court  since  its  organization,  for  the  reason  that  the  reasonnhlc 
doubt  instruction  was  presumed  to  qualify  each  of  the  other  in- 
structions, but  tiiat  cannot  be  true  in  this  case.  For  instance,  no 
court  wouhl  justify  the  fourth  instruction,  if  to  it  could  be  added 
the  words  ''beyond  a  reasonable  doubt."  This  would  be  to  de- 
clare that  an  alibi  must  be  proven  by  defendant  beyond  a  reason- 
able doubt,  a  rule  that  obtains  in  no  State  of  the  Union,  avd 
should  not  in  any  civilized  country.  I  say  by  the  defendant,  be- 
cause it  goes  without  saying,  that  tlio  State  will  not  occupy  the 
contradictory  position  of  attempting  to  show  the  defendant  was 
not  present  at  the  time  and  place  of  the  commission  of  the  crime. 

The  case  of  State  v.  Sanders,  106  Mo.  188,  simply  holds  that 
the  instniction  given  in  that  case  was  substantially  a  correct  in- 
struction on  the  subject  of  alibi,  and  neither  adds  to,  nor  de- 
tracts from,  any  position  assumed  in  this  opinion.  In  the  case 
of  State  V.  Shroyer,  104  !Mo,  448,  no  instruction  was  asked  by 
defendant  on  the  defense  of  an  alibi,  and  the  court  gave  none  of 
its  o^\^l  motion,  so  that  the  questions  involved  in  this  record  were 
not  before  us. 

For  the  error  in  refusing  to  permit  defendant  on  cross-ex- 
amination of  the  witness  ^liller  to  ask  if  the  witness  had  not 
been  arrested  for  stealing  Boulandor's  I)illiard  balls,  and  sent  to 
jail,  and  in  giving  the  fourth  instruction  on  the  part  of  the 
State  and  refusing  a  pro])er  one  to  defendant  as' to  an  'ibi,  the 
judgment  is  reversed  and  cause  remanded.  As  the  cause  must 
be  tried  again,  it  is  thought  best  that  we  should  express  our 
opinion  as  to  the  necessity  for  instructions  on  evidence  tending 
to  prove  an  alibi. 

We  think  that  evidence  tending  to  prove  an  alibi  requires  the 
trial  court,  under  section  4208,  Revised  Statutes,  1881),  to  in- 
struct the  jury  on  the  defense  thus  raised.  If  an  erroneous 
instruction  on  the  question  is  ashed  by  defendant*  it  is  the  duty 
of  the  court  to  give  a  correct  one.  State  v.  Sidney,  74  :Mo.  390 ; 
State  V.  North,  95  ^Ux  010;  State  v.  Edwards,  109  Mo.  31.5. 
Especially  do  we  hold  that  it  is  error  to  refuse  an  instruction  on 
such  evidence  M-hioh  informs  the  jury  that  if  the  evidence  as  to 
the  alibi  raises  a  reasonable  doubt  of  defendant's  guilt,  he  is  en- 
titled to  an  acquittal.     This  we  regard  as  settled  by  State  v. 


THE  STATE  v.  TAYLOR. 


73 


I 


Lewis,  G9  Mo.  92 ;  Slate  v.  Howell,  100  Mo,  028 ;  State  v.  Ed- 
wards, 109  Mo.  315 ;  State  v.  Woolard,  111  Mo.  248. 

Wherever  it  would  bo  the  duty  of  the  trial  court  upon  a 
proper  request  to  instruct  the  jury  upon  any  material  question 
of  hv  arising  on  the  evidence,  it  is  equally  obligatory  upon  it 
to  instruct  the  jury  upon  such  matter  of  its  owti  motion  whether 
requested  or  not. 

The  judgment  is  reversed  and  cause  remanded  for  a  new  trial. 
All  concur. 

Note  (by  J.  P.  O.). — Should  a  witness,  or  defendant,  on  cross-exam- 
ination be  asked  whether  he  has  been  previously  arrested  for  or  con- 
victed of  crimeT  In  Bartholomew  v.  People,  104  111.  601,  In  construing 
a  section  of  the  Illinois  statute,  which  provides  that  no  person  shall  be 
debarred  from  testifying  because  of  a  previous  conviction  for  crime, 
but  that  such  conviction  may  be  shown  for  the  purpose  of  affecting 
credibility,  the  court  held  that  the  statute  only  referred  to  such  crimes 
as  at  common  law  rendered  -he  convict  incapable  of  testifying,  1.  e , 
infamous  crimes;  and  that  no  conviction  could  be  proven  to  affect  the 
credibility  of  the  witness  except  a  conviction  for  an  Infamous  crime, 
which  conviction  could  not  be  proven  by  a  copy  of  the  mittimus,  or  the 
books  of  the  penitentiary,  but  only  by  the  record  of  the  conviction.  Fol- 
lowing the  Bartholomew  Case  in  Simons  v.  People,  150  111.  66  (on 
page  74),  the  court  says:  "The  defendant  was  called  as  a  witness  In  his 
own  behalf,  and  on  cross-examination  he  was  asked  If  he  was  not  In- 
dicted and  convicted  of  perjury  in  the  circuit  court  of  Barber  county, 
West  Virginia,  in  1880.  A  general  objection  was  Interposed  to  the  ques- 
tion, overruled,  and  the  witness  answered:  'I  was.'  The  ruling  of  the 
court  in  the  admission  of  this  evidence  is  relied  upon  as  error.  The 
fact  that  the  defendant  may  have  been  convicted  of  perjury  would  not 
disqualify  him  as  a  witness.  His  conviction  could  only  be  shown  for 
the  purpose  of  affecting  his  credibility.  For  that  purpose  the  People 
had  the  right  to  prove  a  corvlction;  but  they  have  no  right  to  prove 
the  fact  by  parol  evidence.  The  judgmeut  of  the  court  where  the  con- 
viction was  had  was  the  only  competent  evidence  to  establish  a  convic- 
tion, and  that  judgment  could  only  be  established  by  producing  the 
record  of  the  judgment,  or  an  authenticated  copy  of  the  record,  as  we 
have  heretofore  held  In  Bartholomew  v  People,  104  111.  608."  However, 
the  court  held,  in  the  Simons  Case,  that  the  objection  was  properly 
overruled  because  it  was  a  general  objection,  notwithstanding  the  fact 
that  it  is  a  common-law  duty  of  the  court  to  guard  the  rights  of  a  per- 
son who  Is  on  trial  accused  of  crime. 

The  doctrine  that  parol  testmony  shall  not  be  received  to  prove  the 
contents  of  a  record  is  based  jn  the  theory  that  the  record  Is  the  best 
testimony  of  what  it  coniains.  This  being  true,  it  is  dangerous  to  ask 
a  witness  as  to  waether  or  not  he  was  charged  with,  or  convicted  of, 
a  particular  offense;  for  he  may  not  have  an  accurate  knowledge  of 


1       :lil      ■':■ 
1     1      .  1    ^'l 

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I  t 

1 

1 

ill 
II 

iiji 

(■■■' 

mr'n 


74 


AMERICAN  CRIMINAL  REPORTS. 


the  legal  effect  of  such  conviction  or  charge.  If  the  clerk  of  a  court, 
or  other  person  familiar  with  court  proceeding,  cannot  testify  as  to 
the  contents  of  a  record,  without  producing  the  record  or  a  certified 
copy  of  the  same,  certainly  a  person,  who  by  the  question  asked  la  pre- 
sumed to  be  one  of  the  criminal  class  and  not  educated  or  cultured, 
should  not  be  called  upon  to  give  his  construction  or  opinion  as  to  a 
matter  of  record.  Considering  the  fact  that  many  of  the  common-law 
offenst's  are  modlfiea  by  statute,  and  that  indictments  frequently  con- 
tain many  counts  charging  the  same  matter  in  different  forms  and  to 
come  under  the  provisions  of  various  statutes,  it  is  very  improbable 
that  the  accused  himself  can  always  tell  what  he  is  charged  with  or 
convicted  of;  thus  the  accused  might  have  been  indicted  for  burglary 
and  convicted  of  larceny,  or  of  receiving  stolen  property;  or  he  may 
have  been  Indicted  for  both  larceny  and  embezzlement,  with  counts  to 
fit  the  various  provisions  of  the  statute;  or  he  may  have  been  indicted 
for  a  statutory  crime  making  it  a  misdemeanor  or  even  a  felony  to 
burn  personal  property,  and  being  convicted  the  convict  might  believe 
he  was  convicted  of  the  infamous  crime  of  arson.  The  Illinois  rule 
that  the  record  or  a  certified  copy  thereof  Is  only  competent  proof  is 
logical. 

The  practice  of  asking  a  witness  whether  he  has  been  arrested  for, 
or  in  jail  accused  of,  a  certain  offense  is  still  more  objectionable,  for 
frequently  arrests  are  the  direct  result  of  malice  and  revenge,  and  not 
founded  upon  any  reasonable  or  just  ground.  The  late  Daniel  Sculley, 
who  for  many  years  was  a  justice  of  the  peace  in  Chicago  and  noted 
for  his  worthy  qualities  and  exact  justice,  once  informed  the  writer 
that  as  presiding  magistrate  of  the  police  court  he  refused  to  issue 
warrants  upon  Saturdays,  because  such  warrants  were  frequently  pro- 
cured (on  Saturday)  with  the  object  of  having  the  arrest  made  late 
in  the  afternoon,  that  the  accused,  upon  failure  to  give  ball,  because  of 
the  late  hour  at  which  he  was  arrested,  would  thereby  remain  in  cus- 
tody over  Sunday,  to  the  gratification  of  his  revengeful  accuser.  So 
many  are  the  arrests,  and  even  indictments,  founded  either  on  a  mis- 
conception of  the  law  or  upon  a  desire  for  revenge  without  any  mer- 
itorious cause  of  action,  that  no  weight  whatever  should  be  attached 
to  the  fact  that  a  certain  witness  has  been  arrested  for,  or  accused  of, 
some  criminal  offense. 


1       ■;    ■  1 

;      I    ■  i 

■'   ■ 

t 

i'    I         : 

ji  - 

li  i 

■  M  1 

i:,:;... 

State  v.  Ceowell. 

•  149  Mo.  391—50  S.  W.  Rep.  893. 

Decided  May  9,  1899. 

Alibi:  Robbery — Instructions. 

1.  The  indictment  charging  that  the  robbery  was  committed  by  put- 

ting in  fear,  it  is  error  to  charge  that  a  verdict  of  guilty  could  be 
based  on  "force  and  violence,"  as  the  means  of  committing  the  act. 

2.  It  is  error  for  the  court  in  an  instruction  to  say,  "though  an  alibi 

is  a  well-worn  defense,  yet  it  is  a  legal  one." 


STATE  V.  CROWELL. 


75 


Appeal  from  Circuit  Court  of  Barry  County;  Hon.  J.  C. 
Lampson,  Judge.    Keversed. 

J.  S.  Davis  and  I.  V.  McPhcrson,  for  the  appellant. 
E.  C.  Crow,  Attorney-General,  and  S.  B.  Jefferies,  Assistant 
Attciincy-General,  for  the  State. 

SiiKuwooD,  J.  Defendant  was  indicted  for  robbery  in  the 
fust  degree,  convicted,  and  his  punishment  ass'issed  at  five  years* 
imprisonment  in  the  penitentiary.  There  was  testimony  to  war- 
rant the  verdict. 

1,  The  first  instruction  given  at  the  instance  of  the  State  was 
this:  "The  court  instructs  the  jury  that  if  you  find  and  believe 
friiiu  tlie  evidence  in  this  case,  beyond  a  reasonable  doubt,  that 
at  the  county  of  Barry  in  the  State  of  Missouri,  at  any  time 
within  three  years  next  before  the  finding  of  the  indictment 
herein,  to  wit,  on  the  21st  day  of  October,  A.  D.  1897,  the  de- 
feiulant,  Edward  Crowell,  either  alone  or  with  another  in  and 
upon  witness,  J.  A.  Roller,  did  make  an  assault  and  any  money 
of  any  amount  or  any  value  whatever  of  the  property  of  wit- 
ness, J.  A.  Roller,  then  and  there  by  force  and  violence  to  the 
jierson  of  said  J.  A.  Roller,  did  rob,  steal,  take  and  carry  away, 
with  a  felonious  intent  to  deprive  the  owner  of  Lis  property  and 
to  convert  it  to  a  use  other  than  that  of  the  owner  or  Avithout  his 
eoneent,  and  without  any  honest  elnim  to  it  on  the  part  of  the 
t;il<er,  you  will  find  the  defendant  guilty  as  charged  in  the  in- 
dictment, to  wit,  of  robbery  in  the  first  degree,  and  assess  his 
punishment  at  imprisonment  in  the  penitentiary  for  a  term  of 
not  less  than  five  years." 

The  following  is  the  section  itndcr  which  the  indictment  is 
drawn:  "Every  person  who  shall  be  convicted  of  feloniously 
t'lking  the  property  of  another  from  his  person,  or  in  his  pres- 
ence, and  against  his  will,  by  violence  to  his  person,  or  by  put- 
tiiifr  him  in  fear  of  some  immediate  injury  to  his  person,  shall 
be  adjudged  guilty  of  robbery  in  the  first  degree."  R.  S.  1889, 
sec.  3500. 

It  will  be  noted  that  under  this  section  robbery  in  the  first 
degree  may  be  perpetrated  in  either  of  two  ways :  first,  by  vio- 
lence to  the  person,  or,  second,  by  putting  such  person  in  fear  of 


76 


AMERICAN  CRIMINAL  REPORTS. 


some  iminodinte  injury  to  his  person.    The  statute  is  in  the  dis- 
junctive.   Slate  V.  Brodcrkh,  59  Mo.  318 ;  State  v.  Stinson,  12-t 

Mo.  44". 

The  indictment  in  this  instance  charges:  "In  and  iipon  one 
James  A.  Koller,  unlawfully  and  feloniously  did  make  an  as- 
sault, and  forty-seven  dollars  and  eighty-five  cents,  good  and  law- 
ful money  of  tlie  United  States  of  the  value  of  forty-seven  dollars 
and  eighty-five  cents,  the  money  and  property  of  the  said  James 
A.  K<dler,  in  the  presence  and  against  the  will  of  the  said  James 
A.  Roller,  then  ami  there  by  prfting  said  James  A.  Roller  in 
fear  of  some  immediate  injury  to  his  person,  feloniously  did  rob, 
steal,  take  and  carry  away,  against  the  peace  and  dignity  of  the 
State." 

So  that  while  the  indictment  counts  on  putting  Roller  in  fear 
of  some  inuuediate  injury  to  his  person,  the  instruction  quoted 
counts  on  force  and  violence  to  the  person  of  Roller.  There  is 
therefore  a  marked  difference  between  the  charge  in  the  indict- 
ment and  the  instruction  mentioned;  the  former  bottomed  on 
fear,  the  latter  on  violence. 

It  is  true  that  if  the  fact  be  laid  to  be  done  violently  and 
against  the  will,  the  law  in  cdium  spotiatoris  will  presume  fear 
{State  V.  Stinson,  svpm;  State  r.  Laidcr,  130  Mo.  36G)  ;  yet 
it  does  not  thence  follow  that,  if  you  charge  fear,  that  the  law 
will  presume  violence. 

The  proper  exception  was  saved  to  giving  the  instruction  re- 
ferred to,  and  the  same  ground  was  \u'ged  in  the  motion  for  a 
new  trial,  as  appears  in  the  brief  filed  on  behalf  of  the  State. 

2.  Instruction  number  5  given  on  behalf  of  the  State  was  also 
excepted  to  by  defendant  and  such  exception  preserved  in  the 
motion  for  a  new  trial.  That  instruction  reads :  ''The  court  in- 
structs the  jury  that  though  an  atihi  may  be  a  well-worn  defense, 
yet  it  is  a  legal  one,  to  the  benefit  of  which  the  defendant  is  en- 
titled," etc.  There  was  error  in  giving  this  instruction,  as  the 
court  is  not  permitted  to  disparage  the  defense  of  an  alibi  or  to 
refer  to  it  in  a  slighting  or  sneering  manner;  evidence  in  re- 
gard to  an  alihi  is  to  be  tested  and  treated  just  like  evidence 
offered  in  support  of  any  other  defense,  insanity,  self-defense, 
etc.  1  Bishop,  Xew  Crim.  Proc,  sec.  1062 ;  Sater  v.  State,  50 
Tnd.  378;  ^yaiher  v.  State,  37  Tex.  306;  ^/iwt  v.  State,  03  Ind. 


5!»S ; 
300  ct 

o.    * 

unncec 
(H'l'ur. 
Fnr 
cau:^e 


STATE  V.  CROWELL 


77 


4 


noS;  Slate  v.  Gong,  10  Orcg.  534;  11  Eney.  Plead.  &  Prac. 
DdO  ct  acq.,  and  cases  cited. 

o.  Other  points  might  be  connnentcd  upon,  but  it  is  deemed 
unucc't'ssary  to  so  do,  as  the  errors  coniphiined  of  may  not  agaia 
occur. 

For  the  errors  aforesaid,  the  judgment  is  reversed  and  the 
cause  remanded.  -  All  concur. 

NoTKs  ox  THE  L.vw  RELATING  TO  Ai.ini  (By  J.  F.  O.)— It  had  been  our 
intention,  as  a  general  rule,  not  to  report  as  leading  cases,  in  this 
volume,  any  case  decided  prior  to  1898  or  subsequent  to  1899,  but  so 
imijortant  is  the  subject  of  alibi,  and  so  urgent  the  necessity  for  ex- 
tPiuling  the  application  of  the  correct  doctrine  regarding  it,  that  three 
cases  ante-dating  that  period  have  been  selected,  because  of  the  forci- 
ble and  logical  presentation  of  t'le  subject  in  them. 

As  to  the  nature  of  the  defense  of  an  alihi;  as  to  whether  it  is  an 
affirmative  or  a  negative  defense;  as  to  whether  It  shifts  the  burden  of 
proof;  as  to  whether  it  is  necessary  to  establish  it  by  a  preponderance 
of  evidence  or  by  sufficient  evidence  to  simply  raise  a  reasonable  doubt, 
etc. — there  is  a  positive  conflict  in  the  courts  of  last  resort. 

The  general  rule,  that  the  accused  is  presumed  innocent  and  that  no 
conviction  should  be  had  unless  upon  all  the  evidence  considered  to- 
gether guilt  Is  manifest  beyond  reasonable  doubt,  places  the  burden  of 
proof  upon  the  prosecution,  throughout  the  entire  trial,  of  proving  the 
commission  of  a  crime,  the  grade  of  it,  and  that  the  same  was  com- 
mitted by  the  defendant;  hence,  evidence  offered  to  show  that  the  ac- 
cused was  not  present  at  the  time  and  place  of  the  alleged  crime 
is  negative  and  not  affirmative  proof.  The  material  inquiry  in  such 
case  is  whether  or  not  the  defendaut  was  present  at  the  time  and 
plat  6  of  the  alleged  crime.  If,  iu  the  course  of  the  denial  of  such  fact, 
it  is  shown  that  the  defendant  was  elsewhere,  that  is  but  a  corroborat- 
ing circumstance,  and  in  good  practice  the  order  of  proof  will  so  dem- 
onstrate. Thus  the  prosecution  offers  proof  that  the  defendant  com- 
mitted an  assault,  at  nine  o'clocic  P.  M.,  July  1,  at  State  PZi^  Madison 
streets,  Chicago.  The  defendant  produces  a  witness  who  trifles  that 
between  the  hours  of  seven  and  ten  P.  M.  of  that  day  he  wa^,  continu- 
ously in  the  company  of  the  defendant.  The  question  is  then  asked, 
"Was  the  defendant  during  that  time  in  the  locality  of  State  and  Madi- 
son streets,  Chicago?"  To  which  the  witness  responds,  "No,  sir,  he  was 
not."  Here  is  a  positive  and  complete  denial,  as  a  matter  of  law  suffi- 
cient of  Itself,  and  presenting  a  proper  field  for  cross-examination;  but 
the  prosecuting  attorney  may  waive  cross-examination,  and  the  Jurors 
may  not  be  satisfied  with  a  mere  denial;  accordingly  the  defendant's 
counsel,  by  way  of  corroboration,  aslts:  "Where  were  you  and  the  de- 
fendant during  that  time?"  to  which  the  answer  comes,  "We  were  in 

Milwaukee.     We  took  supper  that  evening  at  seven  P.   M.  at  

Hotel,  and  then  went  to Theatre,  remaining  there  until  after  ten 

o'clock."    If  this  general  plan  for  introducing  the  testimony  was  fol- 


K'^\: 


78 


AMERICAN  CRIMINAL  REPORTS. 


lowed  on  all  orpaslons,  the  erroneous  doctrine,  that  an  alibi  Is  an  af- 
flrmatlve  defense,  would  soon  disappear;  for  the  method  of  olforlng  the 
proof  would  demousirate  the  absurdity  o!!  holding  that  an  alibi  is  an 
affirmative  defense. 

The  legitimate  use  of  the  defense  termed  "an  alibi"  Is  In  cases  where 
circumstances  Indicate  the  defendant  as  the  guilty  party;  or  where  ho 
le  the  victim  of  malice  or  perjury;  or  in  cases  of  mistaken  identity; 
the  inquiry  being  as  to  whether  or  not  he  committed  the  alleged  un- 
iHwful  act  or  aits.  Whether  he  was  at  some  distant  place,  or  simply 
out  of  the  Immediate  locality,  or  was  present  and  did  not  participate 
in  the  alleged  crime,  does  not  change  the  general  nature  of  the  defense, 
for  in  each  Instance  he  simply  endeavors  to  rebut  the  testimony  con- 
necting him  with  the  alleged  crime.  For  example,  three  men  are  stand- 
ing together,  two  being  engaged  in  angry  words;  one  of  them  attempts 
to  leave,  and  while  he  la  so  doing  is  violently  struck  by  the  third  man 
with  sufficient  force  to  throw  him  to  the  ground.  By  the  force  of  the 
CTcumstances,  and,  it  may  be,  aided  by  a  vivid  imagination,  the  victim 
Lciieves  the  blow  to  have  been  given  by  his  late  antagonist,  and  causes 
his  arrest  upon  the  charge  of  assault  and  battery.  On  the  trial  a  dis- 
interested by-stander  testifies  that  the  defendant  remaining  still  did 
not  strike  the  blow  and  was  five  feet  distant  when  it  was  struck  by 
his  silent  but  over-zealous  friend.  There  is  no  essential  distinction 
liptwcen  that  defense  and  where  the  accused  is  at  a  far  distant  place. 

The  popular  notion,  that  a  defendant  undertakes  to  prove  an  alibi, 
ttnds  support  In  the  methods  often  used  by  defendant's  counsel  to  gain 
favor  with  the  jury.  Frequently  defendant's  counsel  joins  with  the 
public  prosectitor  in  telling  the  jury  that  a  heinous  and  inexcusable 
crime  has  been  committed,  meriting  extreme  punishment,  but  that  he 
will  demonstrate,  to  the  entire  satisfaction  of  the  jury,  that  his  client 
ia  Innocent,  by  proving  that  at  the  time  of  the  commission  of  the  of- 
fense the  defendant  was  at  a  locality  or  place  so  distant  as  to  render 
participation  in  the  act  impossible.  Counsel  thereby  assumes  a  burden 
which  the  law  does  not  Impose.  The  court  and  the  Jury  are  liable  to 
accept  the  offer,  as  one  made  in  accordance  with  the  requirements  of 
law;  while  the  public  prosecutor  seizes  upon  the  opportunity  and  com- 
ments on  the  real  or  imaginary  Insufficiencies  in  the  proof  of  the  alibi 
a.T  incontrovertible  evidence  of  guilt.  As  similar  instances  of  this  class 
become  frequent,  public  opinion  becomes  fixed  as  to  what  is  supposed 
to  be  the  law  upon  that  subject,  and  the  judicial  mind  lulled  into  ac- 
cepting repeated  errors  as  precedent. 

If  counsel  for  the  defendant,  when  making  the  defense,  popularly 
known  as  "an  alibi"  would  always  assume  and  insist  that  the  burden 
is  on  the  prosecution  to  prove  that  the  defendant  was  present  and  com- 
mitted the  alleged  crime,  and  that  the  material  inquiry  is,  whether  the 
defendant  was  present  at  the  alleged  crime,  and  not  whether  he  was 
at  some  other  specific  and  distant  place,  a  large  majority  of  the  trial 
Judges  would  refuse  to  cast  the  burden  of  proving  his  whereabouts  at 
the  time  of  the  alleged  offense  on  the  defendant,  even  though  such  be 
the  announced  doctrine  of  the  higher  courts  of  their  respective  locali- 
ties. 


STATE  V.  CROWELL.  79 

The  use  of  the  term  "alibi,"  a»  daaignattng  a  partlnilar  rlasH  of  rf«?- 
feuse,  should  he  discontinued,  meaning  aa  It  does,  "elsewhere"  or  "in 
another  place"  (Webster),  as  It  naturally  suggests  a  legal  flition  or 
dolusion,  namely,  that  "an  alibi"  Is  an  affirmative  defense  Incumbent 
upon  the  defendant  to  establish.  It  raises  a  distinction  that  does  not, 
and  should  not,  exist.  It  diverts  the  attention  from  the  true  issues  to 
be  determined.  It  raises  and  creates  the  Illogical,  incoherent  I(>Kal 
paradox,  that  while  it  is  incumbent  on  the  prosecution  to  prove  beymul 
all  reasonable  doubt  that  the  defendant  was  present  at  the  time  and 
place  of  the  alleged  crime,  nevertheless,  the  burden  of  proof  is  also  on 
the  defendant  to  prove  that  he  was  elsewhere,  and  at  a  partlci'la  •  place, 
when  the  alleged  criminal  acta  were  committed.  The  general  misty 
air  surrounding  Liiio  "-ubject  has  induced  many  courts  to  indorse  er 
roneous  instructions  based  on  this  double-headed  anomaly. 


Analysis  of  the  dortrine  by  Mr,  Justice  Hurt  of  Texas. — In  his  opin- 
ion In  Johnson  V.  State,  21  Tex.  App.  308,  17  S.  W.  Rep.  252,  Mr.  Jus- 
tice Hurt  saj's: 

"There  was  testimony  of  quite  a  number  of  witnesses  very  strongly 
supporting  an  alibi.  Upon  this  subject  the  learned  Judge  charged  the 
jury  'that  the  defendant  relies  on  an  alibi  as  a  defense;  that  is,  on 
proof  that,  at  the  time  of  the  offense,  If  any  was  committed,  he  was 
at  another  place,  which  rendered  It  Impossible  for  him  to  have  been 
present  at  the  commission  of  the  offense.  On  this  issue  the  burden  of 
proof  is  on  the  defendant  to  show  by  a  preponderance  of  evidence  the 
facts  establishing  an  alibi.  But  If  the  defendant  has  shown  such  facts 
as  raise  a  reasonable  doubt  as  to  whether  he  could  have  been  present 
at  the  commission  of  the  offense    ...    or  not,  you  will  acquit  him." 

"These  propositions  are  inconsistent  and  in  direct  conflict.  If  the 
burden  of  proof  Is  on  the  defendant  to  establish  his  alibi  by  a  pre- 
ponderance of  evidence,  then  the  doctrine  of  reasonable  doubt  cannot 
possibly  apply.  Whenever,  in  a  criminal  or  civil  case,  a  party  is  re- 
quired to  prove  a  fact  (and  this  always  means  by  a  preponderance  of 
testimony),  the  reasonable  doubt  does  not  obtain,  and  cannot  be  ap- 
plied to  the  negative  or  opposite  of  such  fact. 

"If  A.  be  at  Galveston  at  a  given  time  he  is  guilty,  but  If  at  Houston 
at  that  time  he  Is  not  guilty.  The  burden  Is  on  A.  to  prove  that  he 
was  at  Houston.  If  this  be  so.  a  doubt  that  he  was  at  Galveston  Is 
not  In  the  proposition,  because  he  must  prove  that  he  was  at  Houston, 
and  this  proof  must  be  made  by  a  preponderance  of  evidence;  and  u 
doubt  that  he  was  at  Galveston  does  not  aid  his  proof  that  he  was  at 
Houston.  On  the  other  hand,  his  proof  that  he  was  at  Houston  may 
not  be  by  a  preponderance  of  the  evidence,  but  amply  sufficient  to  raise 
a  reasonable  doubt  that  he  was  at  Galveston. 

"Let  us  view  these  propositions  at  work.  One  of  the  Jurors  says: 
'I  doubt  that  A.  was  at  Galveston.'  To  this  another  replies:  'So  do  I, 
but  has  A.  proved  by  a  preponderance  of  evidence  that  he  was  at 
Houston?"  'No,'  says  the  first,  'but  I  doubt,  from  his  evidence  in  sup- 
port of  his  being  at  Houston,  that  he  was  at  Galveston.'  'But,'  replies 
the  other,  'I  know  that  he  has  not  proven  by  a  preponderance  of  testi- 


>h 


iii 


gQ  AMERICAN  criminal"  REPORTS. 

mony  that  he  was  not  at  Galveston,  and  we  are  Instructed  by  the  Judge 
that  he  must  do  this-that  this  burden  is  upon  him.'  In  comes  the 
third  juror,  and  suggests  that  the  only  way  out  of  this  trouble  is  to 
obey  all  that  the  judge  says  upon  this  subject.  To  this  all  agree.  'Now. 
then,'  says  he,  'we  will  hold  defendant  to  the  proof  that  he  was  at 
Houston,  for  we  are  told  by  the  judge  that  the  burden  is  on  him,  and 
that  he  must  prove  by  the  preponderance  of  the  evidence.  Has  he  dis- 
charged this  burden?'  All  say:  'No.'  Then  he  must  be  convicted.  But 
it  he  has  discharged  this  burden,  then  the  jury  might  have  a  reason- 
able doubt  of  his  being  at  Galveston.  But  the  first  juror  replies:  'The 
judge  charged  us  that  if  defendant  has  shown  such  facts  as  raise  a 
reasonable  doubt  as  to  whether  he  was  at  Gal  'CPton  or  not,  we  should 
acquit.'  To  this  all  agree;  but  the  second  juror  says:  'We  are  also  very 
plainly  told  by  his  honor  that  the  burden  is  on  him  to  prove  that  ho 
was  not  at  Galveston,  and  this  must  be  done  by  the  preponderance  of 
evidence,  and  we  have  all  agreed  that  it  has  not  been  done  by  him.' 

"We  have  adopted  the  above  manner  of  showing  that  the  two  propo- 
sitions are  in  conflict,  and  not  at  all  consistent,  and  for  the  further 
purpose  of  showing  that  they  are  misleading,  and  calculated  to  con- 
fuse the  jury.  We  desire  simply  to  add  that  it  is  well  settled  in  this 
State  that  the  burden  of  proving  an  alibi  is  not  on  a  defendant;  that 
an  alibi  is  an  attack  on  the  presence  of  defendant  at  the  place  of  the 
crime,  and  hence  an  attack  on  guilt." 

The  doctrine  as  announced  in  Oregon. — In  the  case  of  State  v.  Chee 
Gong,  16  Oreg.  534,  error  was  assigned  upon  the  giving  in  the  court 
below  of  the  following  instruction:  "Evidence  has  been  introduced 
on  behalf  of  the  defendants  to  prove  an  alibi:  that  is,  that  the  defend- 
ants were  not  present  at  the  alleged  fatal  assault.  When  this  is  made 
out  to  your  satisfaction  it  is  one  of  the  most  conclusive  defenses  that 
can  be  set  up;  in  fact,  an  alibi  is  not  only  a  proper  defense,  but  to  an 
innocent  man  is  almost  always  an  essential  defense,  and,  indeed,  it 
may  be  his  only  defense.  It  Is  a  defense,  however,  that  is  very  often 
resorted  to  by  guilty  persons  as  well  as  innocent  ones,  and  one  in 
which  perjury,  mistake,  and  deception  are  often  committed.  The  bur- 
den of  proof  is  on  the  defendants  to  make  out  the  defense  of  an  alibi 
when  so  set  up  by  them  as  a  defense,  the  State  having  first  introduced 
proof  and  shown  that  the  defendants  were  present  at,  and  committed, 
the  alleged  fatal  assault.  Therefore,  while  an  alibi  is  a  defense  that 
should  not  be  discredited  on  account  of  its  character,  still  it  devolves 
upon  the  jury  the  duty  of  carefully  scrutinizing  the  testimony  in  such 
cases,  and  of  exercising  urusual  care  and  minuteness  in  considering  it." 

In  reversing  the  conviction  because  of  that  instruction  the  court 
said:  "The  evidence  of  an  alibi  was  not  a  defense,  except  so  far  as  it 
controverted  the  testimony  upon  the  part  of  the  State,  tending  to  show 
that  the  appellants  were  present  and  participated  in  the  affair  charged 
In  the  indictment.  When  proof  is  given  on  the  part  of  the  prosecution 
which  gO'^s  to  show  that  the  defendant  did  the  acts  charged  against 
him,  he  has  a  right  to  disprove  it  by  showing  that  he  was  at  another 
place  at  the  time  of  their  alleged  commission;  and  it  is  the  exclusive 


STATE  V.  CROW  ELL. 


81 


province  of  the  Jury  to  judge  of  the  weight  of  the  testimony  Introduced 
for  that  purpose,  as  much  as  of  any  other  testimony  In  the  case.  It  Is, 
as  said  by  Mr.  Bishop,  mere  ordinary  evidence  in  rebuttal;  and  any 
charge  to  the  jury  that  it  is  not,  as  thut  the  law  looks  with  disfavor 
upon  it,  or  that  it  should  be  tested  differently  from  other  evidence,  is 
erroneous.    1  Bishop,  Crlm.  Prac.   (Sri  ed.),  §  106. 

"The  establishment  by  the  prosecution  of  a  prima  facie  case  does  not 
change  the  burden  of  proof;  that  remains  with  the  prosecution  to  the 
end,  'the  jury,  to  be  authorized  to  convict,  being  required  to  take  Into 
the  account  all  the  evidence  on  both  sides,  including  the  presumptions, 
and  to  be  affirmatively  satisfied  from  it  with  the  certainty  demanded 
by  law  of  the  defendants'  guilt.'  1  Bishop,  Crlm.  Prac.  (3d  ed.), 
§  1050.  The  prosecution  undertakes  to  prove  the  defendant  guilty  be- 
yond a  reasonable  doubt,  not  in  view  alone  of  the  direct  testimony  ad- 
duced by  it,  but  in  view  of  rebutting  testimony  as  well.  The  State  can- 
not stop  after  making  out  a  prima  facie  case  against  the  defendant,  and 
require  him  to  prove  himself  innocent." 

The  doctrine  as  announced  in  Indiana. — In  Parker  v.  Btate,  136  Ind. 
284,  35  N.  E.  Rep.  1104,  in  reversing  a  conviction  the  court  says:  "The 
court,  of  its  own  motion,  gave  to  the  jury  the  following  Instruction: 
'(19)  Evidence  has  been  introduced  on  behalf  of  the  defendants  tend- 
ing to  prove  an  alibi;  and  if  you  should  find,  upon  considering  this  evi- 
dence, that  it  is  sufficient  to  raise  a  reasonable  doubt  in  your  minds 
as  to  whether  the  accused,  or  either  of  them,  were  at  the  (lace  where 
the  alleged  crime  v/as  committed,  then  the  accused,  or  the  one  as  to 
whom  such  doubt  arises,  if  it  arises  as  to  any,  is  entitled  to  acquittal; 
and  the  failure  of  either  defendant  to  account  for  his  whereabouts  dur- 
ing all  the  time  within  which  the  offense  might  have  been  committed 
is  not  of  itself  a  circumstance  tending  to  prove  his  guilt,  but  a  failure 
of  this  character  may  be  properly  considered  by  you  in  connection 
with  any  other  evidence  in  the  case  tending  to  prove  guilt,  if  you  find 
that  there  Is  such.'  So  much  of  this  instruction  as  Informed  the  jury 
that  a  failure  of  the  appellants  to  account  for  their  whereabouts  during 
all  the  time  within  which  the  alleged  crime  might  have  been  commit- 
ted was  a  fact  which  might  be  properly  considered  by  them  in  con- 
nection with  any  other  evidence  In  the  case  tending  to  prove  guilt  is, 
in  our  opinion,  erroneous.  The  defense  of  alibi  stands  upon  precisely 
the  same  footing  as  any  other  defense,  and  evidence  tending  to  support 
such  a  defense  is  sufficient  to  secure  an  acquittal  if  it  raises  a  reason- 
able doubt  of  the  guilt  of  the  person  charged.  French  v.  State,  12 
Ind.  6'(0;  Howard  v.  State,  50  Ind.  190.  In  criminal  cases  the  entire 
burden  Is  upon  the  State  from  the  beginning,  and  the  accused  is  not 
bound  to  explain  anything,  and  his  failure  to  do  so  cannot  be  consid- 
ered as  a  circumstance  tending  to  prove  his  guilt.  Doan  v.  State,  26 
Ind.  495;  Clem  v.  State,  42  Ind.  420.  This  being  trus,  for  a  much 
stronger  reason  the  failure  or  inabil<t>  •)t  an  accused  to  fully  establish, 
by  his  evidence,  a  defense  which  he  attempts  to  prove,  should  not  be 
considered  by  the  jury  as  a  circumstance  tending  to  show  his  guilt." 

In  Fleming  v.  State,  136  Ind.  149,  36  N.  E.  Rep.  154,  error  was  assigned 
Vol.  XI— 6 


82 


AMERICAN  CRIMINAL  REPORTS. 


II- i 


4 


hi     ' 


,"« 


upon  the  refusal  to  give  the  following  instruction:  "And  the  reasonable 
doubt  may  arise  from  the  evidence  already  given  In  the  case,  or  for 
want  of  evidence.  In  this  case  the  defendant  has  Introduced  evidence 
before  you  that  he  was  with  a  young  lady  that  he  was  waiting  on,  by 
the  name  of  Lena  Brattain,  from  about  half  past  nine  on  the  night  of 
the  transaction  until  twenty  minutes  of  one  the  next  morning.  If  this 
evidence  raises  a  reasonable  doubt  in  your  minds  as  to  whether  the 
defendant  was  the  person  that  committed  the  alleged  transaction  in 
the  manner  and  form  alleged,  then,  and  In  that  event,  you  cannot  con- 
vict the  defendant." 

In  reversing  the  conviction  the  Supreme  Court  said:  "That  the  In- 
struction states  correctly  propositions  of  law  applicable  to  the  charge 
and  the  evidence  Is  not  disputed,  but  it  is  claimed  by  tho  appellee  that 
the  same  propositions  were  Included  in  charges  given  to  the  jury.  We 
have  read  carefully  all  of  the  charges  given,  and  feel  constrained  to 
hold  that  they  do  not  cover  fully  the  propositions  of  the  instructions 
refused.  The  jury  were  nowhere  told  that  a  reasonable  doubt  might 
arise  upon  the  evidence  given,  as  well  as  for  the  lack  of  evidence. 
While  the  instruction  refused  is  not  clearly  stated,  it  was  Intended  to, 
and  we  think  it  did,  present  the  further  question  that  a  reasonable 
doubt  could  properly  arise  from  a  consideration  of  the  alibi  evidence 
referred  to,  and  that.  If  it  did  so  arise,  the  jury  could  not  convict.  A 
general  charge  was  given  upon  the  subject  of  reasonable  doubt  as  It 
should  affect  the  jurors  collectively  and  Individually,  and  as  It  should 
apply  to  the  Identity  of  the  person  claimed  to  have  committed  the 
larceny  charged,  but  the  specific  elements  of  the  instruction  asked 
were  not  given  in  any  other  charge.  The  first  proposition  stated  in  the 
instruction  should  have  been  given,  if  the  remainder  had  been  covered 
by  other  charges  given,  or,  if  we  are  in  error  in  our  construction  of 
the  second  proposition  stated,  provided  such  second  proposition,  under 
any  reasonable  construction,  was  not  erroneous,  as  a  question  of  law  ap- 
plicable to  the  charge  and  to  the  evidence.  That  such  second  proposi- 
tion was  not  erroneous  is,  as  we  have  said,  not  questioned.  A  general 
instruction  does  not  authorize  the  refusal  of  a  specific  instruction  ap- 
plicable to  the  charge  and  the  evidence.  Parker  v.  State,  35  N.  E.  Rep. 
1105  (present  term);  Carpenter  v.  State,  43  Ind.  371.  We  conclude, 
therefore,  that  the  refusal  of  this  instruction  was  error,  and  that  the 
judgment  of  the  circuit  court  should  be  reversed." 

The  doctrine  as  announced  in  Alabama.— In  Pate  v.  State  (Ala.), 
10  So.  Rep.  665,  error  was  assigned  upon  the  refusal  of  the  following 
instruction:  (4)  "Gentlemen,  it  Is  not  necessary  that  the  evidence  In 
support  of  an  alibi  should  cover  every  moment  of  time  in  which  the 
offense  was  committed.  It  is  only  necessary  to  create  a  reasonable 
doubt  that  the  defendant  was  there,  and  if,  under  aH  the  evidence, 
there  is  any  reasonable  probability  that  the  defendant  was  not  present 
when  John  Orr  was  killed,  then  you  must  find  him  not  guilty." 

In  passing  upon  this  instruction  the  Supreme  Court  said:  "When  the 
defense  is  that  of  an  alibi,  the  law  casts  the  burden  upon  the  defendant 
to  reasonably  satisfy  the  jury  that  he  was  elsewhere  at  the  time  of  the 


STATE  V.  CROVVELL. 


83 


commission  of  the  offense.  Pellum  v.  State,  89  Ala.  32,  8  So.  Rep.  83. 
This  rule  of  law,  as  applicable  to  the  defense  of  an  alibi,  does  not  re- 
quire of  the  defendant  to  reasonably  satisfy  the  jury  of  his  exact  where- 
abouts every  moment  of  the  time  necessary  to  cover  the  period  when 
the  offense  was  committed,  but  he  is  required  to  prove  such  a  state  of 
facts  or  circumstances  as  to  reasonably  satisfy  the  Jury  that  he  was 
elsewhere  than  at  the  place  where  and  at  the  moment  when  the  offense 
was  committed.  1  Amer.  &  Eng.  Enc.  Law,  pp.  454,  455;  1  Bish,  Crim. 
Proc,  §§  lOCC,  1067;  Pellum  v.  State,  supra;  Allhritton  v.  State,  10  So. 
Rep.  426. 

"The  first  part  of  the  charge  requested  in  reference  to  the  alibi  was 
oltjectionable,  for  the  reason  that  is  was  calculated  to  mislead.  The 
jury  might  have  inferred  from  the  charge  that  the  alibi  was  sufficiently 
established,  although  the  testimony  adduced  in  support  of  it  did  not 
reasonably  satisfy  the  jury  that  he  was  elsewhere  when  the  offense  was 
committed.  A  case  will  not  be  reversed  for  refusing  a  charge  which 
calls  for  an  explanation.  We  lay  down  the  true  rule  to  be  that  proof 
a  Iduced  to  support  an  alibi  should  be  considered  by  the  jury  with  the 
ether  evidence  in  the  case;  and  if,  upon  the  whole  evidence,  there  is  a 
reasonable  doubt  of  the  defendant's  guilt,  he  should  be  acquitted." 

It  will  be  observed  that  the  Instruction  was  based  on  a  false  theory, 
in  that  It  conceded  that  it  was  necessary  for  the  defendant  by  evidence 
"to  create  a  reasonable  doubt." 


Thr  svbfect  as  it  is  treated  in  Illinois. — In  Illinois  there  seems  to  be 
no  settled  doctrine,  as  a  review  of  the  authorities  will  indicate. 

Ilopps  V.  People,  31  111.  385,. is  referred  to  by  later  authorities  as 
a  precedent  upon  this  subject.  In  that  case  the  defense  was  insanity. 
The  court  said:  "Suppose  the  question  was  one  of  Identity,  would  not 
a  reasonable,  well-founded  doubt  on  the  point  acquit  the  prisoner? 
Suppose  an  alibi  was  sought  to  be  proved,  and  proof  sufficient  was  of- 
fered to  create  a  reasonable  doubt  whether  the  accused  was  at  the 
place,  and  at  the  time,  when  and  where  the  offense  was  alleged  to  have 
been  committed,  is  not  the  prisoner  entitled  to  the  benefit  of  the  doubt? 
So,  if  the  defense  be  that  a  homicide  was  justifiable  or  excusable,  is  not 
the  principle  well  settled,  a  reasonable  doubt  will  acquit?  The  r  .le  is 
founded  in  human  nature,  as  well  as  in  the  demands  of  justice  and 
public  policy.  Innocence  is  the  presumption,  guilt  ba.ng  alleged;  the 
State  making^the  charge  is  bound  to  prove  it;  the  State  is  bound  to 
produce  evidence  sufficient  to  convince  the  mind  of  the  guilt  of  tho 
party,  If  a  reasonable  doubt  is  raised,  then  the  mind  Is  not  convinced, 
and  being  in  that  unsettled  state,  whatever  the  probabilities  may  be,  a 
Jury  cannot  convict.  It  is  entirely  impossible  for  them  to  say  the  ac- 
cused is  guilty,  when  they  entertain  a  reasonable  doubt  of  his  guilt. 
.  .  .  It  1b  urged  by  the  prosecution  that  the  burden  of  proof  is  on  the 
accused,  to  make  out  his  defense.  That  sanity  being  a  normal  condi- 
tion, insanity  must  be  established  by  preponderance  of  evidence.  .  .  . 
We  do  not  understand  the  burden  of  proof  is  shifted  on  the  defendant. 
Every  man  charged  with  crime  is  entitled  to  claim  the  benefit  of  all 
the  provisions  of  the  law.    In  every  case  of  murder  the  first  inquiry  is, 


84 


AMERICAN  CRIMINAL  REPORTS. 


14  ■ 


m 
It 


Has  the  homicide  been  committed?  Did  the  prisoner  do  the  deed?  Did 
he  intend  to  do  it?  Was  he  of  sound  mind  and  not  affected  with  in- 
sanity when  the  act  was  done,  and  was  the  act  done  with  malice  afore- 
thought, expressed  or  implied?  These  are,  all  of  them,  affirmative  facts, 
and  must  be  proved  by  the  prosecution." 

In  this  case,  notwithstanding  the  fact  that  all  persons  are  presumed 
to  be  of  the  same  mind,  the  court  places  the  burden  upon  the  State  to 
prove  such  fact,  evidently  meaning  that,  imless  the  circumstances  sur- 
rounding the  case  show  that  the  defendant  acted  as  a  rational  being, 
he  should  be  acquitted.  The  reasoning  of  the  court  applies  with  greater 
force  to  the  question  as  to  whether  or  not  the  defendant  did  the  act; 
for  upon  that  question  there  can  be  no  presumption  against  the  de- 
fendant. The  only  objection  to  the  decision  is  that  it  indicates  a  rea- 
sonable doubt  created  by  the  evidence,  when  in  fact  the  evidence  for 
both  the  prosecution  and  the  defense  should  be  considered  as  a  unit, 
and  then  the  question  is,  does  the  entire  evidence  esta1)lish  guilt  be- 
yond a  reasonable  doubt. 

Miller  v.  People,  39  111.  457,  while  citing  Hopps  V.  People  as  an  au- 
thority, departs  from  the  doctrine  announced;  the  court  saying:  "The 
theory  of  an  alibi  is  that  the  prisoner  was  so  far  removed  from  the 
scene  of  the  crime  at  the  time  of  its  commission  as  to  make  it  impos- 
sible that  he  should  have  committed  it,  but  he  is  entitled  to  the  benefit 
of  any  reasonable  doubt  the  jury  may  entertain  on  this  point."  (Re- 
versing a  conviction.) 

In  Garrity  v.  People,  107  111.  162,  the  court  departs  from  the  doctrine 
announced  in  the  Hopps  Case,  and  says:  "It  is  apparent,  from  this  re- 
view of  the  testimony,  that  the  greater  portion  of  it  is  directed  ex- 
clusively to  the  question  of  alibi.  This,  indeed,  was  the  controlling  and 
absorbing  issue  on  the  trial  in  the  court  below.  It  is  well  settled  that 
the  onus  of  proving  this  defense  devolves  upon  the  accused,  and  it 
must  be  clearly  and  satisfactorily  established  before  it  can  avail,  where 
the  evidence  otherwise  makes  out  a  clear  case  against  the  accused." 
The  court  here  evidently  loses  sight  of  the  fact  that  no  clear  case  is 
made  out  against  the  accused  until  all  of  the  evidence  or.  both  sides  is 
in;  and  then  only  if  all  of  the  evidence,  considered  as  a  unit,  establish 
guilt  beyond  reasonable  doubt.  The  court  also  departs  from  the  doc- 
trine In  the  Hopps  Case,  that  if  a  reasonable  doubt  arises  from  the 
testimony  the  defendant  should  be  acquitted. 

In  Mullens  v.  People,  110  111.  42,  the  court  says:  "The  general  rule  is, 
where  the  prosecution  makes  out  such  a  case  as  would  sustain  a  ver- 
dict of  guilty,  and  the  defendant  offers  evidence,  the  burden  is  on  him 
to  make  out  that  defense,  whatever  it  may  be;  but  as  to  an  alibi,  and 
all  other  like  defenses  that  tend  merely  to  cast  a  reasonable  doubt  on 
the  case  made  out  by  the  prosecution  when  the  proof  is  in,  then  the 
primary  question  is,— the  whole  evidence  being  considered,  both  that 
given  for  the  defendant  and  for  the  prosecution,— is  the  defendant 
guilty  beyond  a  reasonable  doubt." 

At  least  a  portion  oi  the  doctrine  announced  in  the  Mullens  Case  is 
repudiated  in  Hoag  v.  People,  117  111.  35  (see  p.  44).  The  court.  In  re- 
versing the  conv'ction  because  of  erroneous  Instructions  given  in  the 


STATE  V.  CROWELL. 


85 


court  below,  said:  "To  require  the  defendant  to  'satisfactorily'  explain 
his  recent  possession  of  the  stolen  property,  and  to  'satisfactorily'  es- 
tablish an  alibi,  before  it  can  aval),  is  imposing  a  burden  on  him  but 
little  short  of  convincing  the  jury  beyond  a  reasonable  doubt  {Uerrick 
V.  Gary,  83  111.  89),  whereas  the  burden  is  upon  the  People  to  establish 
his  guilt;  and  if,  after  considering  the  evidence  introduced  by  him  as 
to  either  or  both  of  these  questions,  in  connection  with  all  the  other 
evidence  in  the  case,  and  giving  due  consideration  to  the  entire  evi- 
dence, the  jury  shall  have  a  reasonable  doubt  of  the  defendant's  guilt, 
he  cannot  be  convicted.  Hopps  v.  The  People,  31  111.  385;  Miller  v.  The 
People,  39  id.  465;  Mullins  v.  The  People,  110  id.  42." 

In  Acker  son  v.  People,  124  111.  563  (on  p.  568),  the  court  said:  "The 
burden  of  making  good  the  defense  of  alihi  is  upon  the  accused,  and 
to  make  It  availing  he  must  establish  such  facts  and  circumstances, 
clearly  sustaining  that  defense,  as  will  be  sufficient,  when  considered 
in  connection  with  all  the  other  evidence  in  the  case,  to  create  in  the 
minds  of  the  jury  a  reasonable  doubt  of  the  truth  of  the  charge  against 
him."  This  annunciation,  requiring  the  defendant  to  "establish  such 
facts  and  circumstances  clearly  sustaining  that  defense,"  certainly  is 
not  consistent  with  the  doctrine  announced  in  Hoag  v.  People. 

In  Aneals  v.  People,  134  111.  401,  in  reviewing  an  instruction  upon  this 
subject  (p.  416)  the  court  said:  "The  jury  must  believe,  beyond  a  rea- 
sonable doubt,  from  a  consideration  of  all  the  evidence,  that  the  defend- 
ants are  guilty,  before  they  would  be  justified  in  so  finding.  But  these 
Instructions  did  not  relate  to  the  question  of  guilt  or  Innocence,  strictly. 
By  them  the  jury  were  told,  in  effect,  that  if,  after  considering  the  facts 
and  circumstances  in  proof,  they  had  no  reasonable  doubt  of  the  pres- 
ence of  the  plaintiffs  in  error  at  the  house  of  Knox  at  the  time  of  the 
assault,  then  the  defense  of  alihi  had  not  been  made  out,  and  was  un- 
availing. The  instructions  were  entirely  proper,  and  not  in  conflict 
with  the  rule  stated."  It  Is  difficult  to  understand  why  the  question  of 
guilt  or  Innocence  Is  not  Involved  In  the  question  as  to  whether  or  not 
the  accused  was  present  at  the  commission  of  the  offense.  If  he  was 
present,  he  might  have  been  guilty;  but  If  he  was  absent  he  could  not 
have  been  guilty;  accordingly  the  instruction  did  refer  to  the  question 
of  guilt  or  innocence. 

In  Carleton  v.  People,  1.50  111.  181,  the  court  says:  "As  to  the  defense 
of  an  alibi  the  burden  of  making  It  out  was  upon  the  plaintiff  In  error 
(Ackerson  v.  The  People,  124  111.  563),  and,  in  order  to  maintain  it,  he 
was  bound  to  establish  in  its  support  such  facts  and  circumstances  as 
were  sufficient,  when  considered  in  connection  with  all  the  other  evi- 
dence in  the  case,  to  create  in  the  minds  of  the  jury  a  reasonable  doubt 
of  the  truth  of  the  charge  against  him  (Qarrity  v.  The  People,  107  111. 
162;  MulUna  v.  The  People,  110  id.  42)."  If  the  testimony  upon  part 
of  the  prosecution,  considered  by  itself,  does  not  prove  guilt  beyond  a 
reasonable  doubt  the  defendant  should  be  acquitted;  yet  the  court  says 
that  as  soon  as  the  defendant  denies  that  he  was  present,  the  burden 
is  on  him  to  prove  his  absence  and  maintain  it  by  evidence  that  will 
create  a  reasonable  doubt  in  the  mind  of  the  jury,  which  doubt  may 
have  existed  before  the  introduction  of  the  defendant's  testimony. 


8G 


AMERICAN  CRIMINAL  REPORTS. 


!'t5 


n. 


h 


V 


A  review  of  loica  cases.— The  case  of  State  v.  Hamilton,  57  Iowa,  596, 
has  several  times  been  cited  by  the  Supreme  Court  of  that  State  as  a 
leading  authority;  but  all  that  was  said  In  that  case  upon  the  subject 
is  as  follows: 

"The  defendant  claimed  that  he  was  at  another  place  when  the  rob- 
bery was  committed.  The  court  Instructed  the  jury  that  the  burden  of 
proof  was  on  the  defendant  to  establish  the  fact  that  he  was  not  pres- 
ent l)y  a  preponderance  of  evidence.  This  Instruction  was  correct  and 
is  now  the  settled  law  of  the  State,"  citing  24  Iowa,  570;  46  Iowa,  623; 
53  Iowa,  69;  48  Iowa,  583;  54  Iowa,  183. 

In  that  case  Adams,  C.  J.,  filed  a  dissenting  opinion  in  which  he  com- 
pletely refutes  the  doctrine,  and  in  which  appears  the  following: 

"This  court  has  never  undertaken  to  abrogate  the  rule  that  a  reason- 
able doubt  of  guilt  justifies  an  acquittal.  It  has.  Indeed,  recognized 
this  rule  in  the  very  cases  relied  upon  by  the  majority  as  holding  that 
when  the  defendant  relies  upon  proving  an  alibi  he  must  prove  it  by  a 
preponderance  of  evidence.  Both  rules  cannot  be  correct  because  they 
are  inconsistent  with  each  other.  No  jury  can  follow  both.  Let  us 
suppose  a  case  where  the  evidence  of  an  alibi  does  not  preponderate, 
but  does  raise  a  reasonable  doubt  of  guilt,  what  shall  a  jury  do?  If 
they  follow  the  instruction  that  evidence  of  an  alibi  must  preponderate, 
they  must  convict  and  disobey  the  instruction  as  to  reasonable  doubt. 
On  the  other  hand,  if  they  follow  the  instruction  as  to  reasonable  doubt, 
they  must  acquit  and  disobey  the  instruction  as  to  the  evidence  of  an 
alibi.  I  cannot  regard  the  rule  adopted  by  the  majority  as  to  evidence 
of  an  alibi  as  being  the  established  doctrine  of  this  court,  so  long  as 
it  is  inconsistent  with  another  rule  to  which  the  court  still  adheres. 
If  the  court  adopts  the  rule  in  question  as  to  an  alibi,  then,  to  be  con- 
sistent, it  should  modify  the  rule  as  to  reasonable  doubt.  The  rule  as 
modified  would  be  as  follows:  A  reasonable  doubt  of  guilt  is  sufficient 
to  justify  an  acquittal,  unless  it  is  raised  by  evidence  of  an  alibi,  and 
if  it  is,  then  it  is  not  sufficient." 

The  cases  cited  in  the  Hamilton  Case  fall  to  logically  sustain  the 
conclusion  arrived  at  by  the  majority  of  the  court.  In  State  v.  Vincent, 
24  Iowa,  570,  without  the  support  of  any  authorities,  the  court  says: 
"One  of  the  defenses  made  by  the  prisoner  is,  that  the  body  of  the  de- 
ceased is  not  that  of  Claiborn  Showers,  and  that  after  it  was  found  he 
was  in  life,  and  was  seen  by  four  witnesses  at  different  times  and 
places.  This  defense  is  termed  an  'alibi  of  the  alleged  deceased'  in  the 
instructions  of  the  court  and  arguments  of  the  cdunsel,  and  the  jury 
were  instructed  that,  to  sustain  it,  the  same  weight  of  evidence  was 
necessary  as  to  sustain  the  alibi  of  the  prisoner,  which  was  also  a  de- 
fense, and  that  the  burden  of  proof  of  each  was  upon  the  prisoner. 
This,  it  is  urged,  is  error.  The  alibi  of  the  prisoner,  and  the  existence 
in  life  of  Claiborn  Showers  at  the  time  of  the  alleged  murder,  are  each 
independent  propositions  totally  inconsistent  with  the  guilt  of  the 
prisoner.  It  is  evident  the  burden  of  proof  of  each  rests  upon  the 
prisoner,  for  neither,  against  prima  facie  evidence  of  its  corresponding 
inconsistent  proposition  of  the  prosecution,  will  be  presumed.  These 
defenses,  then,  must  be  sustained  by  the  prisoner,  and  the  evidence  nee- 


STATE  V.  CROWELU 


87 


3 


eB!!ary  to  sustain  either  of  them  must  be  sufficient  to  outweigh  the 
proof  tending  to  establish  its  contradictory  hypothesis.  This  is  the 
doctrine  of  the  instructions  objected  to,  and  it  is  sustained  by  reason 
and  the  authorities." 

If  the  reasoning  of  this  case  were  followed,  it  would  relieve  the  State 
from  proving  the  corpus  delicti;  for  if  it  devolves  on  a  defendant  to 
prove  by  a  preponderance  of  the  evidence  that  a  certain  person  was 
alive,  the  burden  is  not  on  the  State  to  prove  his  death:  one  of  the  most 
essential  matters  of  proof  in  a  homicide  case. 

In  State  v.  Hardin,  46  Iowa,  623,  Day,  C.  J.,  says:  "There  is  not  en- 
tire harmony  in  the  decisions  as  to  the  degree  of  proof  of  an  alibi 
which  must  be  produced  in  order  to  entitle  the  defendant  to  an  ac- 
quittal." He  then  proceeds  to  review  several  authorities,  and  says: 
"In  the  opinion  of  the  writer,  these  cases  present  the  only  logical  and 
consistent  doctrine.  For  if  a  reasonable  doubt  be  created  of  the  pres- 
ence of  the  accused  at  the  time  and  place  of  the  commission  of  an  of- 
fense, which  he  could  not  commit  when  absent,  a  reasonable  doubt  is 
raised  as  to  his  guilt,  and  a  reasonable  doubt  of  guilt,  all  authorities 
hold,  entitles  the  accused  to  an  acquittal." 

In  Iftate  v.  Northrup,  48  Iowa,  583,  the  matter  is  disposed  of  in  a 
very  few  lines,  the  court  stating  that  there  is  a  diversity  of  opinion 
upon  the  subject,  but  that  a  majority  of  the  court  adhere  to  the  rule 
laid  down  in  the  24th  Iowa. 

In  State  v.  Red,  53  Iowa,  69,  the  court  attempts  to  reconcile  the  doc- 
trine of  requiring  an  alihi  to  be  proven  by  a  preponderance  of  evidence 
and  the  doctrine  of  reasonable  doubt,  and  says:  "This  rule  does  not 
abrogate  the  doctrine  of  reasonable  doubt.  A  prisoner  cannot  be  con- 
victed upon  a  preponderance  of  evidence.  There  must  exist  no  reason- 
able doubt  of  his  guilt  based  upon  the  evidence,  but  there  may  be  a 
preponderance  of  evidence  against  him,  and  yet  a  reasonable  doubt  of 
his  guilt.  In  such  case  the  jury  may  acquit.  This  reasonable  doubt 
may  be  based  upon  the  whole  evi<lence  or  upon  the  evidence  establish- 
ing certain  essential  facts  necessary  to  be  established,  or  upon  evidence 
of  facts  inconsistent  with  the  prisoner's  guilt.  The  doctrine  extends  to 
ell  the  evidence  and  to  each  part  tending  to  establish  independent 
facts,  if,  upon  consideration  of  the  whole  evidence  or  any  part  of  it, 
the  reasonable  doubt  arises  as  to  any  essential  fact,  the  jury  must  ac- 
quit." The  reasoning  of  the  court  certainly  does  not  support  its  con- 
clusion. 

In  State  v.  Kline,  54  Iowa,  183,  the  court  was  called  upon  to  pass  upon 
two  contradictory  Instructions,  one  of  which  required  an  alibi  to  be 
proved  by  a  preponderance  of  evidence,  and  the  other  of  which  told  the 
jury  that  if  "from  all  the  evidence  there  is  a  reasonable  doubt  of  the 
defendant's  guilt  he  must  be  acquitted,  whether  that  doubt  arises  from 
a  defect  in  the  evidence  on  the  part  of  the  State  or  from  evidence  intro- 
duced by  the  defendant."  The  majority  of  the  court  sustained  these 
instructions. 

In  State  v.  lieed,  62  Iowa,  40,  Justice  Adams  delivered  the  opinion  of 
tlie  court,  announcing  that  the  majority  of  the  court  held  that  an  alibi 
must  be  sustained  by  a  preponderance  of  the  evidence,  but  frankly  saya 


(  ) 


88 


AMERICAN  CRIMINAL  REPORTS. 


that  he  and  Chief  Justice  Day  think  that  the  defendant  Is  entitled  to 
an  acquittal  if  the  alibi  is  sufllolent  to  raise  a  reasonable  doubt  of  guilt; 
and  that  in  his  own  opinion  he  "does  not  regard  alibi  as  a  defense 
within  any  accurate  meaning  of  the  word,  but  as  a  mere  fact  shown  iu 
rebuttal  of  the  State's  evidence." 

In  State  v.  Bcasley,  84  Iowa,  83,  the  court  says:  "The  burden  of  prov- 
ing it  is  upon  the  accused,  because  knowledge  of  the  truth  of  it  and  the 
means  of  proving  it  is  peculiarly  with  him.  A  preponderance  of  evi- 
dence is  the  lowest  degree  of  proof  upon  which  Issues  of  fact  are  de- 
termined, and,  unless  this  defense  is  thus  established,  it  cannot  be 
said  to  be  proven,  and,  unless  proven,  is  not  entitled  to  any  considera- 
tion." 

This  reason  applies  with  equal  If  not  greater  weight  against  the 
prosecution.  The  defendant  says  that  he  was  absent.  Therefore  the 
State,  having  full  knowledge  of  the  facts  of  the  crime,  should  prove  the 
crime  and  identity  of  the  criminal  beyond  a  reasonable  doubt;  yet, 
while  that  burden  rests  upon  the  State,  the  court  says  it  devolves  upon 
the  defendant  to  prove  his  whereabouts  by  a  preponderance  of  evidence, 
simply  becattse  he  teas  self-conscious  as  to  where  he  was. 


\ 


Pkoplk  v.  Fielding. 

158  N.  Y.  542—53  N.  E.  Rep.  497. 

Decidefl  April  18,  1899. 

Argument  of  Couxsel:  Improper  remarks  and  appeals  to  the  jury. 

1.  While  public  prosecutors  should  not  be  restricted  in  "fair  argument, 

comment  or  appeal"  to  the  jury,  they  should  not  be  allowed  to 
state  facts  not  proved,  or  to  make  inflammatory  appeals  to  passion 
and  prejudice,  or  to  threaten  the  jury  with  popular  denunciation, 
or  to  tell  the  jurors  that  they  would  be  committing  the  "unpar- 
donable sin"  if  they  failed  to  convict  the  defendant. 

2.  It  is  error  to  allow  the  prosecutor  to  tell  the  jury  that  the  defend- 

ant could  not  live  In  a  certain  locality  for  less  than  ten  thousand 
dollars  a  year,  and  that  tens  of  thousands  are  waiting  outside  for 
their  verdict. 

3.  The  probable  effect  of  such  appeals  is  to  divert  the  attention  of  the 

jury  from  the  evidence,  prejudice  them  against  the  defendant, 
and  prevent  the  exercise  of  sound,  dispassionate  Judgment  upon 
the  merits. 

4.  The  approval  of  the  trial  court  intensifies  the  effect  of  such  prejudi- 

cial remarks;  and  a  subsequent  instruction  to  disregard  remarks 
of  counsel  may  not  cure  the  injury  already  done. 

5.  After  defendant's  counsel  has  several  times  objected  to  such  re- 

marks which  the  prosecutor  persistently  continues  to  make,  with 
the  approval  of  the  court,  he  need  not  continue  to  make  objections 
•  to  each  remark,  but  the  subsequent  remarks  will  be  held  subject 
to  the  exceptions  already  taken. 


PEOPLE  V.  FIELDING. 


80 


Appeal  from  the  Appellate  Division  of  the  Supreme  Court  of 
tlio  Second  Judicial  Department  for  Kings  County  reversing 
SO  A  pp.  Div.  401. 

Eobert  W.  Fielding  was  indicted  under  section  1C5  of  tlio 
Criminal  Code  for  falsely  auditing  and  paying  claims,  etc. 

Charles  J.  Patterson,  for  the  appellant. 
Hiram  R.  Steele,  for  the  respondent. 

Vaxn,  J.  "We  think  that  the  record  before  us  is  free  from 
reversible  error  except  as  to  a  single  question  which  is  raised 
l)y  the  following  extract  from  the  appeal  book,  transcribed  liter- 
ally so  that  it  may  speak  for  itself. 

The  district  attorney,  in  summing  up,  said:  "Defendant 
cliangod  his  style  of  living  from  a  frame  house  on  Prospect 
avenue  to  a  palatial  residence  on  Eighth  avenue,  which  every 
man  knows  cannot  be  maintained  in  the  style  of  that  neighbor- 
hood for  loss  than  ten  thousand  dollars  a  year."  Objected  to. 
The  court:  "There  is  no  evidence  of  that."  By  the  district  at- 
torney: "I  appeal  to  the  common  sense  of  the  jury."  The 
court:  "There  is  no  other  comment  required  than  the  statement 
of  the  fact  that  there  is  no  evidence  in  the  case  as  to  how  much 
it  cost  to  maintain  an  establishment  on  Eighth  avenue."  By 
the  district  attorney:  "There  is  no  evidence,  but  you  will  not 
prohibit  their  using  their  experience,  etc."  In  further  summing 
up,  he  said :  "Go  and  spend  an  hour  in  the  tax  collector's  office 
the  day  after  the  tax  levy  is  confirmed,  and  look  at  the  long 
line  — "  Objected  to  by  the  defendant.  The  court :  "I  do  not 
think  this  interruption  is  called  for."  By  defendant's  coiinsel: 
"I  will  take  an  exception  if  your  honor  will  permit  him  to  pro- 
ceed on  that  line."  The  court :  "I  will  hear  what  he  says  first." 
By  defendant's  counsel:  "I  ask  to  have  it  taken  down.  I  ask 
you  to  stop  him  at  this  point,  and  take  an  exception."  The 
court :  "I  cannot  do  both ;  I  cannot  have  it  taken  down  and  have 
him  stopped  also.  Proceed."  By  the  district  attorney :  "I  say, 
visit  the  tax  office  on  the  day  after  the  annual  taxes  are  con- 
firmed, and  look  at  the  long  line,  that  stretches  out  into  and 
down  the  street,  of  people  that  are  willing  to  stand  there  all  day 
in  order  to  save  the  little  rebate  which  early  payment  secures. 


00 


AMERICAN  CRIMINAL  REPORTS. 


1^; 


I  y 


Those  people  are  :\k'  victims  of  the  defendant's  fraud."    By  de- 
fendant'? counsel :  "Does  your  honor  permit  him  to  proceed  in 
this  fashion,"     The  court:    "Yes."     By  defendant's  counsel: 
"I  will  take  an  exception."    By  the  district  attorney:  "This  in- 
terruption is  outrageous.    Counsel  should  be  instructed  to  take 
his  exception  when  I  have  finished."    By  defendant's  counsel : 
"Have  I  right  to  take  it  — "    Tlie  court :  "I  do  not  think  it  is 
called  for ;  that  is  all  I  can  say.    I  can  only  say  that  I  do  not 
think  these  continual  interruptions  are  called  for."    By  defend- 
ant's cftunsel :  "I  have  a  right  to  take  an  exception."    The  court : 
"Yes,  you  have."     By  the  district  attorney:    "But  at  a  later 
time."    By  defendant's  counsel:  "I  think  not."    By  the  district 
attorney:    "The  purpose  is  to  break  the  effect  of  anything  I 
might  say  to  you.    He  knows  it  is  improper."    By  defendant's 
attorney:    "I  do  not."     By  the  district  attorney:    "I  say  the 
people  that  you  will  find  there  in  a  line  on  that  day  are  the 
victims  of  the  defendant's  crime.     You  will  find  there  the 
widow,  that  has  starved  her  brood  of  little  children  and  seen 
their  faces  get  pinched  and  liaggard,  in  order  that  she  might  be 
sure  that  tax  day  should  not  find  her  with  empty  hands.     It  is 
that  woman's  money,  coined  out  of  her  blood  and  the  blood  of 
her  children,  that  the  defendant  has  sto'en  and  squandered.     If 
you  will  indulge  the  pitiful  sentiments  of  yo\ir  hearts,  think  of 
her.    Oh,  there  are  unwritten  tragedies  of  that  sort  enacted,  not 
in  the  luxurious  habitations  of  Eighth  avenue,  but  behind  the 
shabby  front  doors  of  poor  neighborhoods.    Look  at  the  old  man, 
standing  in  line,  clutching  in  his  knotted  fingers  his  last  year's 
receipt — "    By  the  defendant's  counsel :   "Does  your  honor  per- 
mit this?    Is  this  in  your  ruling ?"  The  court:   "I  am  going  to 
permit  him  to  sum  up  his  case."  By  defendant's  counsel :  "I  ask 
you  to  stop  him  at  this  point  about  the  descriptions  of  the  old  man 
with  the  knotted  fingers."    The  court:  "Proceed."    By  defend- 
ant's counsel:   "I  will  take  an  exception."    By  the  district  at- 
torney: "You  ought  to  be  ashamed."    By  defendant's  counsel: 
"You  ought  to  be  ashamed  of  yourself  to  talk  to  a  jury  like 
this."     The  court:    "I  think  it  is  perfectly  proper,  but  there 
is  nothing  I  can  do  to  compel  the  attorney  of  the  defendant  to 
take  the  niling  of  the  court."    By  defendant's  counsel :    "Let 
him  go  on.  I  shall  not  interrupt  him  with  another  word.  Let  him 


PEOPLE  V.  FIELDING. 


01 


(loscvibe  all  tho  knottcil  fingers  in  the  Iniul."  By  the  district 
iittornoy:  "And  the  claque  that  stands  behind  the  mil — "  Tho 
court:  "Proceed."  By  tho  district  attorney:  "I  say  you  will 
sf'c  old  men  in  that  line  clutching  in  their  knotl>  d  fingers  rolls 
of  dirty  one-dollar  bills.  Look  at  their  worn  an<!  shabby  gar- 
ments; look  at  the  marks  of  painful  labor  Avriticu  all  over  their 
aged  and  clumsy  limbs;  it  is  the  money  of  these  people  which 
the  defendant  has  stolen  and  squandered.  These  are  the  people 
whose  cause  I  plead.  These  are  the  victims  of  the  defendant's 
crime.  These  are  the  people  who  now,  by  tens  of  thousands,  aro 
waiting  outside  for  your  verdict.  Will  you  do  them  justice,  or 
will  you  not?  If  you  shall  let  this  man,  loaded  with  his  guilty 
plunderj  escape,  then  I  say  you  have  committed  tho  unpardon- 
able sin." 

It  did  not  appear  that  the  defendants'  counsel,  by  his  method 
of  summing  up,  incited  these  remarks  on  the  part  of  the  district 
ntt<iniev. 

In  eliarging  the  jury  the  court  said :  "Some  things  have  been 
said  about  the  newspapers,  about  popular  clamor,  and  about  the 
burden  of  the  taxpayers.  Those  are  conditions  which  are  not  to 
control  or  influence  you  in  deciding  this  case.  What  the  clamor 
may  be,  I  do  not  know;  I  have  never  heard  of  it.  What  the 
news])apers  may  have  said,  I  do  not  care;  I  have  never  read  it. 
ITow  much  the  people  may  or  may  not  be  burdened,  no  matter. 
If  the  times  were  prosi>erous,  a  ])ublic  official  has  no  right  to 
make  an  assault  upon  the  public  treasury  or  to  aid  others  in 
doing  so,  and  he  must  be  tried  only  for  the  crime  be  has  commit- 
ted, if  he  has  committed  one,  and  it  would  be  wrong  in  the  ex- 
treme to  assume  anything  and  allow  it  to  w'cigh  against  this  do- 
fcmlant  because  of  hard  times,  or  because  of  diffieulties  which 
tho  people  who  pay  money  into  the  city  treasury  may  or  may 
not  have  in  acquiring  the  means  of  making  the  payment."  Upon 
the  request  of  the  defendant  he  further  charged:  "That  there 
is  no  evidence  in  the  case  Avhich  would  justify  the  jury  in  find- 
ing that  it  was  more  expensive  to  live  upon  Eighth  avenue  than 
in  Prosj)cct  avenue,"  and  "they  are  not  to  consider  any  facts  but 
those  which  have  been  proven  by  the  witnesses  or  the  exhibits." 

We  do  not  wish  to  express  any  views  which  would  restrict 
counsel  in  fair  argument,  comment,  or  appeal.    We  object,  how- 


02 


AMKRICAX  CRIMINAL  KEPOHTS. 


m 

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i  :i: 


If'': 


ever,  to  tho  nssortion  by  the  lonrneci  district  nttornoy  of  facts 
not  provt'd,  to  his  inlliiiimiiit..ry  npjioalrt  to  passion  and  proju- 
dico,  and  to  his  tliront  to  tho  jury  of  i)opnhu  dcnnncintion,  all 
under  tho  sniictioii  of  the  trial  court.  If  the  record  in  this  case 
is  sustiiiiu'd  I»y  tho  doliin'riito  jndfjniont  of  tho  court  of  last  re- 
sort, it  is  (lirti(!ult  to  soo  tho  liiiiit  to  iiitomporato  language,  un- 
proved assertion  or  pornioioiis  appeals  on  the  part  of  counsel  for 
tho  prosecution,  except  their  own  sense  of  propriety.  Tho  law, 
in  our  judgment,  does  not  thus  leave  an  accused  person,  pre- 
sumed to  he  innocent  until  proved  *^o  bo  guilty,  bound  and  help- 
less in  the  liauds  of  his  accuser. 

Even  ill  a  civil  action  when  counsel  arc  permitted,  under  ob- 
jection and  exceptiim,  while  s\innning  up,  to  road  to  tho  jury  an 
abstract  from  a  pami)hlet  or  newspaper,  or  to  exhibit  a  cartoon, 
not  in  evidence,  it  is  good  groiunl  for  reversal.  Koelgrs  v. 
Gunnlhni  Life  Ins.  Co.,  'n  X.  Y.  038 ;  Williams  v.  Broohhjn 
FJcvalcd  n.  11.  Co.,  120  X.  Y.  90;  McKcevcr  v.  Wcyer,  11 
\Veekly  Digest,  238.  So  statements  nuido  by  counsel,  outside 
of  the  evidence  and  subject  to  objection,  which  strongly  tend  to 
arouse  sympathy,  prejudice  or  resentment  in  tho  minds  of  tho 
jury,  require  a  new  trial,  even  if  the  court  charges  that  they 
have  nothing  to  do  with  tho  case,  and  must  be  disregarded. 
llaJliern  v.  Nasmu  EJcc.  E.  R.  Co.,  10  App.  Div.  90 ;  liacjuVy  v. 
Morning  Journal  Ass'n,  38  App.  Div.  522. 

Language  which  might  be  permitted  tc?  counsel  in  sununing 
up  a  civil  action  cannot  with  propriety  bo  used  by  a  public  prose- 
cutor, who  is  a  f/wrtsZ-judicial  officer,  representing  the  people  of 
the  State,  and  presumed  to  act  impartially  in  tho  interest  only 
of  jus  ice.  If  he  lays  aside  the  impartiality  that  should  charac- 
terize his  official  action  to  become  a  heated  partisan,  and  by 
vituperation  of  the  prisoner  and  appeals  to  prejudice  seeks  to 
procure  a  conviction  at  all  hazards,  ho  ceases  to  properly  repre- 
sent the  public  interest,  which  demands  no  victim,  and  asks  no 
conviction  through  the  aid  of  passion,  sympathy  or  resentment. 
By  such  a  course,  in  tho  long  run,  he  throws  away  much  of  his 
strength,  because  his  violent  and  reprehensible  language  betrays 
his  bias  and  finally  weakens  his  influence  with  the  jury.  As 
was  said  by  Judge  Earl  in  People  v.  Greenwall,  115  X.  Y.  520, 
526,  "the  district  attoraey,  representing  the  majesty  of  the  pec- 


PEOPLE  v.  FIELDINO. 


08 


plo,  nnd  having  no  rospnnsiltility,  cxpopt  fairly  to  ili«cliurgc  his 
<hity,  shdiiM  put  hiiiisolf  uu(h'i'  proper  rt'strnint,  nnd  nhonhl  not 
in  his  remarks,  in  the  licaring  of  the  jury,  go  beyond  the  evi- 
dence or  the  Ixmnds  of  a  reaj^onahle  nio(h'ration."  Xeither  in 
that  cafc  nor  in  VeapJo  v.  llrooks,  ISl  X.  Y.  321,  .'{20,  was  any 
olijectiun  made  or  exeeption  taken.  In  the  forniw,  whieh  \vaa  a 
Ciipital  case,  the  e<mrt  was  not  hound  to  int«'rfere,  while  ia  the 
latter,  which  was  an  api>eal  from  the  general  term,  it  had  no 
power  t<t  interfere,  withmit  an  exception.  As  the  admonition  of 
the  eonrt  has  not  proved  sufficient  to  prevent  improper  and  dan- 
gerous appeals  to  the  prejudice  of  jurors,  it  has  become  neces- 
sary, as  we  think,  to  rigidly  enforce  the  general  rule  of  this  nnd 
many  other  States  thnt  requires  a  reversal  whenever  tlie  error 
is  raised  by  a  projier  exeeption. 

Abuse  of  the  defendant  by  the  prosecuting  officer  in  his  ad- 
dress to  the  jury,  whieh  was  caleulatetl  to  arouse  their  passions 
against  him  nnd  materially  prejudice  him  in  the  trial,  has  been 
held  such  error  as  would,  of  itself,  cause  a  reversal.  Stone  v. 
State,  22  Tex.  Ct.  App.  185.  Where  the  prosecuting  attorney 
was  permitted  to  comment  on  the  perscmal  appearance  of  the  de- 
fendant, not  as  a  witness,  nor  on  account  of  his  manner  and 
bearing  as  such,  but  as  indicating  a  probability  of  guilt,  it  was 
<leemed  sufficient  to  reverse  a  judgment  of  conviction.  Bessette 
V.  Sidle,  101  Ind.  85. 

In  Tucker  v.  Ilcnnlkcr,  41  X.  Y.  317,  323,  the  eotirt  said: 
**It  would  seem  utterly  vain  and  quite  useless  to  caution  jurors, 
in  the  progress  of  a  trial,  against  listening  to  conversations  out 
of  the  court  room  in  regard  to  the  merits  of  a  cause,  if  they  are 
to  1)0  permitted  to  listen  in  the  jury  box  to  statements  of  facts 
calculated  to  have  a  bearing  upon  their  judgment,  enforced 
and  illustrated  by  all  the  eloquence  nnd  ability  of  learned,  zeal- 
ous and  interested  coiinsel.  .  .  .  Statements  of  facts  not 
proved  and  comments  thereon  are  outside  of  a  cause ;  they  stand 
legally  irrelevant  to  the  matter  in  question,  and  are,  therefore, 
not  pertinent.  If  not  pertinent,  they  are  not  within  the  privi- 
lege of  counsel." 

In  Lauhach  v.  State,  12  Tex.  Ct.  App.  583,  the  prosecuting 
attorney,  when  commenting  iipon  the  evidence  in  his  closing 
argument,  was  interrupted  by  the  defendant  in  person  with  the 


94 


AMERICAN  CRIMINAL  REPORTS. 


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statement  tliat  if  he  had  certain  absent  witnesses  he  couhl  show 
a  different  state  of  facts.  Thereupon  the  attorney,  achlrossing 
the  inrv,  stated  that  a  brother  of  the  absent  witnesses  tohl  him 
that  they,  if  present,  would  testify  against  the  defendant.  Ob- 
jection was  promptly  made  to  this  remark,  and  the  district  at- 
torney at  once  told  the  jury  not  to  regard  anything  he  or  defend- 
ant had  said.  The  judgmcni  was  reversed  upon  the  ground, 
among  others,  that  the  remark  was  unwarranted  by  the  law  or 
the  facts  and  was  calculated  to  injure  the  rights  of  the  defend- 
ant by  prejudicing  his  case  in  the  minds  of  the  jury. 

In  Brown  v.  Swineford,  44  Wis.  282,  292,  counsel,  in  sum^ 
ining  up,  commented  upon  the  appellant's  connection  with  a 
i-ailroad  company  and  his  ability  on  that  account  to  pay  any 
judgment  which  might  be  rendered  against  him.  The  court  re- 
\crsed  the  judginent,  and  after  referring  to  the  adjudged  cases 
remarked,  "All  of  them  support  the  rule  now  adopted  by  this 
court,  that  it  is  error  sufficient  to  reverse  a  judgment  for  coun- 
sel, against  objection,  to  state  facts  pertinent  to  the  issue  and  not 
in  evidence  or  to  assume  arguendo  such  facts  to  be  in  the  case 
when  thev  are  not." 

In  State  v.  Smith,  75  X.  C.  306,  the  prosecuting  attorney, 
addressing  the  jiiry,  said :  "The  defendant  was  such  a  scoundrel 
that  he  was  compelled  to  move  his  trial  from  Jones  county  to  a 
county  where  he  Avas  not  known."  The  conviction  was  reversed 
and  the  court  said  that  "the  purpose  and  natural  effect  of  such 
language  was  to  create  a  prejudice  against  the  defendant  not 
arising  out  of  any  legal  evidence  before  them,  for  the  jury  were 
precluded  from  inquiry  into  the  causes  or  motive';  for  moving  the 
trial,  and  even  from  the  knowledge  whether  the  trial  was  moved 
by  the  State  or  the  defendant." 

In  Eea  v.  Harrwgfon,  58  Vt.  181,  190,  the  court  said;  "It 
has  been  repeatedly  held  in  other  jurisdictions,  and  recently  in 
this,  that  when  counsel  persistently  travel  out  of  the  record,  bas- 
ing argument  on  facts  not  appearing  and  appealing  to  preju<lice, 
irrelevant  to  the  case  and  outside  of  the  proof,  it  not  only  merits 
the  severe  censure  of  the  court,  but  is  valid  ground  for  excep- 
tion." 

In  Newton  v.  State,  21  Fla.  53,  it  was  held  that  where  counsel 
for  the  prosecution  upon  the  trial  of  a  cause  before  a  jury,  abus- 


PEOPLE  V.  FIELDING. 


C5 


ing  his  privilege  to  the  manifest  prejudice  of  the  defendant, 
makes  statements  with  regard  to  evidence  being  adduced  not 
jiertinent,  and  therefore  not  within  his  privilege,  it  beeonios 
the  duty  of  the  judge  to  stop  him  at  once,  and  if  he  fails  to  do 
so  and  the  impropriety  is  great  it  is  ground  for  a  new  trial  upon 
appeal. 

In  Mooi'e  v.  State,  21  Tex.  Ct.  App.  GGG,  the  district  attorney 
in  his  address  to  the  jury  said  that  the  defendant  had  been  con- 
victed of  the  offense  for  which  he  was  on  trial  "upon  a  former 
and  previouG  indictment,"  and  upon  appeal  it  was  reversed  on 
a  trifling  technicality  in  drawing  the  indictment,  and  he  urged 
the  jury  to  give  him  such  a  term  in  che  penitentiary  as  would 
make  up  for  ihe  gi-eat  expense  he  had  caused  upon  a  more  tech- 
nicality. The  court  in  reversing  the  judgment  said:  '*In  many 
decisions  this  court  has  urged  upon  counsel,  whose  duty  it  is  to 
prosecute  the  pleas  of  the  State,  to  refrain  from  injecting  into 
trials  of  cases  of  this  kind  any  matter  calculated  to  inflame  the 
minds  or  excite  the  prejudice  of  the  jury.  If  we  could  add  any- 
thing to  what  has  1  een  said  or  could  use  any  language  calculated 
to  reach  the  minces  and  consciences  of  those  to  whom  such  ad- 
monitions are  addressed,  we  would  avail  ourselves  of  the  present 
occasion  to  do  so.  As  we  cannot,  we  can  only  reverse  and  re- 
mand the  case,  in  the  hope  t!  :  the  accused  may  secure  a  fair 
and  impartial  trial,  according  to  law  and  according  to  those 
methods  alike  ancient  and  honorable  which  still  obtain  in  all  en- 
lightened courts." 

See  also  as  to  the  effect  of  a  departure  from  legitimate  course 
of  argument  the  following  cases:  Rudolph  v.  Landicerlen,  92 
Ind.  U;  School  Town  of  Rochester  v.  Shaw,  100  Ind.  26S ;  Hall 
V.  ^yolff,  61  Iowa,  559 ;  Bremmer  v.  Railroad  Co.,  61  Wis.  114. 

In  a  case  that  is  free  from  doubt  upon  the  merits,  the  appel- 
late court  disregard  errors  of  the  trial  court,  even  in  a  criminal 
case,  when  it  is  reasonably  certain  that  they  could  not  have  af- 
fected the  result.  A  proposition  is  reasonably  certain  when  it  is 
supported  by  the  strong  probabilities,  but  here  the  strong  proba- 
bilities are  that  the  erroi*s  did  affect  the  result.  The  average 
man  cannot  read  the  eloquent  but  inflammatory  language  of  the 
diftrict  attorney  without  being  impressed  by  it,  and  it  is  safe 
to  presume  that  the  effect  would  be  heightened  by  hearing  those 


Ut 


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96 


AMERICAN  CRIMINAL  REPORTS. 


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words  spokon  with  animation  and  enthusiasm  under  the  excit- 
ing circumstanoos  surroundinjr  an  important  criminal  trial. 
The  jury  might  be  told  by  the  court  to  forget  them,  but  could 
they  forget  them  I  They  might  be  told  to  disregard  them,  but 
how  can  we  be  certain  that  they  did  disregard  them  ?  ^Moreover, 
some  of  the  most  objectionable  language  was  not  alluded  to  by 
the  court  in  its  charge,  and  instructions  to  the  jury  do  not  al- 
ways neutralize,  either  as  a  matter  of  law  or  fact,  the  effect  of 
improper  remarks  in  their  presence.  People  v.  Corey,  157 
X.  Y.  332,  3-K;  ;  Brools  r.  Rochester  By.  Co.,  15G  X.  Y.  244, 
252;  People  v.  Hill,  37  App.  Div.  327;  Sivan  v.  Keough,  35 
App.  Div.  SO. 

From  our  observation  of  jurymen  we  think  the  langiiago 
under  consideration  would  be  apt  to  turn  their  minds  against 
the  defendant,  divert  their  attention  from  the  evidence  and  pre- 
vent the  exercise  of  sound  and  dispassionate  judgment  upon  the 
merits.  It  brought  before  them  vivid  pictures  of  suffering  and 
Avant,  of  wrongs  done  to  the  Avidow  and  orphan  by  the  defendant, 
and  of  a  multitude  of  people  waiting  outside  the  court-house  for 
his  conviction.  The  hardships  of  small  taxpayers,  the  privations 
of  the  poor  and  the  overwhelming  influence  of  public  opinion 
were  urged  against  him,  and  he  was  described  as  a  thief,  living 
in  a  palace  on  the  proceeds  of  public  plunder.  There  was  even 
an  attempt  to  intimidate  the  jury  by  telling  them  that  they  would 
commit  "the  unpardonable  sin"  unless  they  convicted  him.  The 
cause  of  complaint  by  the  appellant  is  not  a  single,  inadvertent 
remark,  which  might  well  be  overlooked,  but  after  repeated  ob- 
jections improper  statements  were  persisted  in  under  the  claim, 
sustained  by  the  court,  that  it  was  right  to  make  them. 

The  harsh  and  unjust  statements  of  the  district  attorney  were 
not  founded  upon  evidence,  but  rested  wholly  on  his  unsu])- 
ported  declarations.  The  most  of  them  would  have  been  ruled 
f)Ut  as  immaterial  or  incompetent  if  evidence  had  been  offered 
to  show  that  they  were  true.  They  violated  the  reason  upon 
which  theiaw  of  evidence  is  founded  by  spreading  facts  before 
the  jury  without  any  proof,  and  virtually,  also,  the  rule  of  evi- 
dence which  prohibits  inmiaterial  and  incompetent  facts  from 
being  proved.  There  was  no  evidence  that  it  cost  $10,000  a  year 
to  live  in  the  style  of  Eighth  avenue,  where  the  defendant  re- 


PEOPLE  V.  FIELDING, 


97 


sided,  and  when  the  point  was  raised  the  court  so  ruled.  The 
district  attorney,  however,  in  disregard  of  the  ruling,  appealed 
to  the  common  sense  of  the  jury,  and  the  court  very  properly 
tried  to  check  him,  but  he  was  allowed  to  appeal  to  their  experi- 
ence without  rebuke.  After  that  he  met  with  no  attempt  at  re- 
straint by  the  court.  Whatever  he  said,  whether  it  was  about 
the  widow  starving  her  little  children  until  their  faces  got 
pinched  and  haggard  in  order  that  she  might  pay  the  taxes  stolen 
by  the  defendant,  or  about  aged  men,  deformed  by  painful  labor, 
Avhose  money  the  defendant  had  squandered,  met  with  the  ap- 
proval of  the  court.  Instead  of  repressing  these  unfounded  and 
dangerous  assertions,  when  repeatedly  requested  to,  at  first  ho 
condemned  the  efforts  of  the  defendant's  counsel  to  prevent 
them,  and  finally  pronounced  the  course  of  the  district  attomey 
''perfectly  proper,"  and  expressed  regret  that  his  ruling  to  that 
effect  was  not  acquiesced  in.  Even  the  threat  of  popular  de- 
nunciation and  the  attempt  to  frighten  the  jury  by  declaring 
that  they  would  commit  the  unpardonable  sin  if  thoy  found  for 
the  defendant,  met  with  neither  remonstrance  nor  reproof.  The 
language  of  the  prosecuting  officer,  thus  indorsed  by  the  highest 
authority  known  to  the  jury,  must  have  gone  home  to  their  mind.; 
with  powerful  and  convincing  effect,  while  the  counsel  for  tlio 
defendant  was  left  in  the  attitude  of  a  wrong-doer,  trying  to  dis- 
turb the  proceedings  of  the  court.  After  persisting  in  his  efforts 
to  protect  his  client  until  the  court  held  that  he  was  out  of  order, 
he  was  not  obliged  to  run  the  risk  of  punishment  for  contempt 
by  continuing  to  object,  for  all  that  was  said  by  the  district  at- 
torney after  the  court  had  taken  this  position  should  be  hold  sub- 
ject to  the  exceptions  already  interposed.  The  court  should  even 
allow  an  exception  \i\wi\  appeal  where  counsel  were  prevented 
from  excepting  at  the  trial.  Moreover,  the  objections  taken  were 
to  the  general  course  pursued  by  the  district  attorney,  and  when 
the  court  had  sanctioned  this,  no  further  objection  or  exception 
was  necessary.  This  method  of  summing  up  should  have  been 
sternly  interrupted  by  the  court  of  its  ow^n  motion,  so  as  to  ex- 
clude improper  statements  and  comments  from  the  consideration 
of  the  jury,  for  objections  made  after  the  district  attorney  had 
said  what  he  wanted  to  were  objections  made  after  the  harm  was 
done. 

Vol.  XI— 7 


'f      H 


98 


AMERICAN  CRIMINAL  REPORTS. 


After  what  took  place  during  the  summing  up,  how  can  we  bo 
sure  that  the  general  and  placid  language  of  the  charge  wholly 
counteracted  the  pointed  and  vigorous  words  of  the  district  at- 
torney, indorsed  as  they  had  been  by  the  court  itself?  When 
improper  evidence  has  been  received  or  improper  statements 
made  in  the  presence  of  the  jury,  if  the  court  seeks  to  correct 
them,  the  correction  should  be  as  broad  as  the  error,  and  cover 
substantially  the  same  ground,  as  was  the  case  in  Cole  v.  Fall 
Broolc  Coal  Co.,  159  X.  Y.  59,  decided  at  the  present  term.  The 
court  in  its  charge  said  nothing  about  the  improper  appeals  to 
sympathy,  prejudice  or  passion,  the  starvation  of  children  by 
their  widowed  mothers,  the  knotted  fingers  and  bent  forms  of 
old  men,  the  denunciation  of  the  defendant  as  a  thief,  or  the 
bugbear  of  the  unpardonable  sin  held  up  before  the  jury  so 
forcibly.  The  correction  did  not  cure  the  errors,  because  it  did 
not  go  far  enough  and  was  not  sufficiently  clear  and  specific.  It 
did  not  repel  the  presumption  of  injury.  Coleman  v.  People, 
58  X.  Y.  555,  501 ;  People  v.  Gonzales,  35  K  Y.  49,  59. 

Whether  the  defendant  ])e  innocent  or  guilty,  in  our  opinion 
he  has  not  been  adjudged  guilty  in  accordance  with  law,  because 
he  has  not  had  the  fair  and  impartial  trial  which  the  law 
prescribes  for  a  person  charged  with  crime.  If  we  disregard  a 
sound  and  well-established  rule  in  this  case  because  we  think  he 
is  guilty,  we  tear  down  one  of  the  safeguards  provided  by  so- 
ciety for  the  protection  of  its  citizens,  and  the  precedent  may,  at 
some  time,  aid  in  depriving  an  innocent  man  of  his  liberty  or 
his  life. 

The  judgment  should  be  reversed  and  a  new  trial  ordered. 


distri 
the  pi 
Th 
rise  t 
tion  : 


.1 


IIaight,  J.  (dissenting).  The  indictment,  under  which  the 
defendant  was  convicted,  was  founded  upon  section  165  of  the 
Penal  Code.  The  affirmance  by  the  appellate  division  was 
unanimous,  thus  disposing  of  the  questions  of  fact.  We  have 
carefully  examined  the  exceptions  taken  with  reference  to  the 
admission  and  rejection  of  evidence,  and  are  of  the  opinion  that 
they  were  properly  disposed  of  by  the  court  below. 

There  is  only  one  question  which  we  think  it  our  duty  to  dis- 
cuss upon  this  appeal,  and  that  pertains  to  the  remarks  of  the 


PEOPLE  V.  FIELDING. 


99 


district  attorney  who  tried  the  case,  which  have  been  quoted  in 
the  prevailing  opinion. 

The  privilege  of  connsel  in  addressing  a  jury  has  often  given 
rise  to  controversies  which  have  been  the  subject  of  considera- 
tion in  our  courts,  as  well  as  in  the  courts  of  our  sister  States. 
In  56  American  Reports,  814,  and  58  American  Reports,  64-8, 
will  be  found  notes,  in  which  many  of  the  cases  are  collected  and 
digested.  There  is  one  case  to  which  we  will  specifically  refer, 
for  it  expresses  our  views  upon  the  subject,  and  that  is  the  case 
(if  WWimms  v.  Brooklyn  Elevated  Railroad  Co.,  126  X.  Y.  96, 
102.  In  that  case,  Andrews,  J.,  in  delivering  the  opinion  of  the 
court,  says:  "It  is  the  privilege  of  counsel  in  addressing  a  jury 
to  couinient  upon  every  pertinent  matter  of  fact  bearing  upon 
the  questions  which  the  jury  have  to  decide.  This  privilege  it  is 
most  important  to  pi'cserve  and  it  ought  not  to  be  narrowed  by 
any  close  construction,  but  should  be  interpreted  in  the  lai-gest 
sense.  The  right  of  counsel  to  address  the  jury  upon  the  facts 
is  of  public  as  well  as  private  consequence,  for  it^  exercise  has 
always  proved  one  of  the  most  eflPective  aids  in  the  ascertainment 
of  truth  by  juries  in  courts  of  justice,  and  this  concerns  the  very 
highest  interest  of  the  State.  The  jury  system  would  fail  much 
more  frequently  than  it  now  does  if  freedom  of  advocacy  should 
be  unduly  hampered  and  counsel  should  be  prevented  from  exer- 
cising within  the  four  corners  of  the  evidence  the  widest  lati- 
tude by  way  of  comment,  denunciation  or  appeal  in  advocating 
his  cause.  This  privilege  is  not  beyond  regulation  by  the  court. 
It  is  subject  to  be  controlled  by  the  trial  judge  in  the  exorcise 
of  a  sound  disr^etion,  to  prevent  undue  prolixity,  waste  of  time, 
or  unseemly  ciiiicism.  The  privilege  of  counsel,  however,  does 
not  justify  the  introducticm  in  his  summing  up  of  matters 
wholly  immaterial  and  irrelevant  to  the  matter  to  be  decided, 
and  Avhich  the  jury  have  no  right  to  consider  in  arriving  at  their 
verdict.  The  jury  are  sworn  to  render  their  verdict  upon  the 
evidence.  The  law  sedulously  guards  against  the  introduction 
of  irrelevant  or  incompetent  evidence,  by  which  the  rights  of  a 
party  may  be  prejudiced.  The  purpose  of  these  salutary  rules 
might  be  defeated  if  jurors  were  allowed  to  consider  facts  not 
in  evidence,  and  the  privilege  of  counsel  can  never  operate  as  a 


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100 


AMERICAN  CRIMIXAL  REPOiiT& 


license  to  state  to  a  jury  facts  not  in  evidence,  or  to  present  con- 
siderations which  hare  no  legitimate  hearing  upon  the  case  and 
which  the  jury  would  have  no  right  to  consider.  AVhere  counsel 
in  summing  up  proceeds  to  dilate  upon  facts  not  in  evidence  or 
to  press  upon  the  jury  considerations  which  the  jury  would  have 
no  riglit  to  regard,  it  is,  we  conceive,  the  plain  duty  of  the  court, 
upon  objection  made,  to  interpose,  and  a  refusal  of  the  court  to 
interpose,  where  otherwise  the  right  of  the  party  would  be  preju- 
diced, Avould  be  legal  error." 

The  district  attorney  is  a  high  public  officer,  representing  the 
State,  Avhich  seeks  equal  and  impartial  justice,  and  it  is  as  much 
his  duty  to  see  that  no  innocent  man  suffers  as  it  is  to  see  that 
no  guilty  man  escapes.  In  the  discharge  of  these  most  impor- 
tant duties  he  commands  the  respect  of  the  people  of  the  county 
and  usually  exercises  a  great  influence  upon  jurors.  In  discuss- 
ing the  evidence  he  is,  as  we  have  seen  in  the  case  alluded  to, 
given  the  widest  latitude  within  the  four  corners  of  the  evidence 
by  way  of  comment,  denunciation  or  appeal,  but  he  has  no  right 
to  call  to  the  attention  of  the  jury  matters  or  considerations 
which  the  jurors  have  no  right  to  consider.  Verdicts  obtained 
throngh  duress,  bias  or  prejudice  are  illegal,  and  will  be  set 
aside.  This  is  also  time  with  reference  to  verdicts  based  upon 
popular  clamor. 

Upon  referring  to  the  connnents  of  the  district  attorney,  it  ap- 
pears that  he  proceeded  to  draw  pictures  based  upon  matters  out- 
side of  the  evidence,  of  a  widow  with  her  starved  brood  of  little 
cliildron  with  faces  pinched  and  haggard,  and  an  old  man  clutcli- 
ing  in  his  knotted  fingers  rolls  of  dirty  one-dollar  bills,  standing 
in  line  of  taxpayers  all  dpy  in  order  to  save  the  little  rebate  which 

•  iy  payment  of  their  taxes  secures.  lie  then  says :  "The^'e  are 
fl.i-  people  whose  cause  I  plead,"  and  then  states  that  "these  are 
t\'  ,  e!'j)ie,  who  now,  by  tens  of  thousands,  are  waiting  outside 
I  ;•  ^  •' .  verdict.  Will  you  do  them  justice,  or  will  you  not  ?  If 
you  shall  let  this  man,  loaded  with  his  guilty  plunder,  escape, 
then  I  say  you  have  committed  the  unpardonable  sin."  As  we 
understand  this  language,  the  district  attorney  demands  of  the 
jury  a  verdict  of  gniilty  based  upon  the  clamor  of  tens  of  thou- 
sands who  are  waiting  outside,  and  insists  that  if  the  jurors  do 
not  comply  with  his  demand  they  will  commit  the  unpardonable 


PEOPLE  V.  FIELDING. 


101 


sin.  This,  we  think,  was  going  too  far,  and  cannot  be  approvefl. 
]Io  departed  from  I;'  line  of  dnty,  which  was  a  discussion  of 
tlie  evidence  and  a  demand  of  a  conviction  based  thereon,  and 
appealed  to  the  jnrj'  for  a  conviction  upon  considerations  which 
had  no  legitimate  bearing  upon  the  case,  and  which  the  jury  had 
no  right  to  consider. 

We,  however,  are  inclined  to  the  view  that  a  now  trial  is  not 
required.  Under  the  constitution  we  are  limited  in  our  review 
to  questions  of  law.  The  defendant's  counsel  took  a  number  of 
exceptions  to  the  statements  made  by  the  district  attorney,  but 
when  he  came  to  his  last  and  final  statement,  in  which  the  real 
vice  occurred,  the  defendant's  counsel  neglected  to  take  an  ex- 
ception. That  which  preceded  the  final  remarks  of  the  district 
attorney  may  not  have  been  in  good  taste,  but  we  do  not  regard 
it,  standing  alone,  to  be  such  a  departure  from  the  line  of  dis- 
cussion permissible  within  the  privilege  of  the  district  attorney 
as  to  warrant  a  reversal.  We  regard  the  question  very  much  re- 
lieved by  the  charge  of  the  court,  who,  after  listening  to  the 
comments  of  the  district  attorney,  sa^'s :  "Some  things  have  been 
said  about  the  newspapers,  about  popular  clamor,  and  the 
burden  of  the  taxpayers.  Those  are  considerations  which  are 
not  to  control  or  influence  you  in  deciding  this  case.  What  the 
clamor  may  be,  I  do  not  know ;  I  have  never  heard  of  it.  What 
the  newspapers  may  have  said,  I  do  not  care;  I  have  never  read 
it.  How  much  fhe  people  may  or  may  not  be  burdened,  no  mat- 
ter. If  the  times  were  prosperous,  a  public  official  has  no  right 
to  make  an  assault  upon  the  pul)lic  treasury,  or  to  aid  others  in 
doing  it,  and  he  must  be  tried  only  for  the  crime  he  has  commit- 
ted, if  he  has  committed  one;  and  it  would  be  wrong  in  the  ex- 
treme to  assume  anything  and  allow  it  to  weigh  against  this  de- 
fendant because  of  hard  times,  or  because  of  difficulties  which 
the  people  who  pay  money  into  the  city  treasury  may  or  may  not 
have  in  acquiring  the  means  of  making  the  payment."  The 
court  further  charged :  "There  is  no  evidence  in  the  case  which 
would  justify  the  jury  in  finding  that  it  Avas  more  expensive  to 
live  upon  Eighth  avenue  than  in  Prospect  avenue;  that  no  un- 
favorable inference  can  be  drawn  in  this  case  against  the  de- 
fendant from  the  fact  that  in  the  month  of  September,  1807,  ho 
moved  from  Prospect  aveniie  into  Eighth  avenue." 


102 


AMERICAN  CRIMINAL  REPORTa 


'"$ 


h  I 


Under  section  542  of  the  Code  of  Criminal  Procedure  wc  are 
required  to  give  judgment  without  regard  to  technical  errors  or 
defects  or  to  exceptions  which  do  not  affect  the  suhstantial  rights 
of  tlie  parties.  Under  the  circumstances,  therefore,  we  think 
the  judgment  and  conviction  should  be  affirmed. 

Pakkkr,  C.  J.,  Baiitlett  and  ^Iartin,  JJ.,  concur  with 
Vanx,  J.,  for  reversal  of  judgment  of  conviction,  etc. ;  Gkay 
and  O'Ijijikx,  JJ.,  concur  with  IIaioiit,  J.,  for  affirmance. 

Judgiuent  of  conviction  reversed  and  new  trial  ordered. 

Note  (by  H.  C.  G.). — The  case  of  People  v.  Fielding,  supra,  Is  upe- 
cially  important  for  emphatically  announcing  the  very  reasonable  doc- 
trine that  when  the  prosecutor  persistently  continues  his  remarks  after 
the  defendant's  counsel  has  several  times  objected,  only  to  be  admon- 
ished by  the  court  that  he  is  interrupting  the  prosecutor,  that  it  is  un- 
necessary tor  him  to  except  to  each  improper  remark,  but  that  the 
court  will  consider  them  all  as  excepted  to.  This  should  be  the  rule 
everywhere,  because  the  defendant's  counsel,  being  compelled  to  take 
frequent  exceptions  with  an  adverse  court,  is  made  to  appear  in  a  bad 
light  before  the  jury, — as  an  interrupter  of  the  proceedings,  as  an  ob- 
structionist, and  as  though  he  were  afraid  of  discussion;  all  of  which 
phases  are  generally  exploited  by  the  prosecutor  in  the  heat  of  his  argu- 
ment. 


State  v.  Tilvuger. 


Supreme  Court  of  Iowa— 77  N.  W.  Rep.  336. 

Decided  December  14,  1898. 

ARGUJtENT  OF  COUNSEL:  Prejudicial  remarks — Defendant  before  grand 

jury. 

1.  The  fact  that  the  accused  was  brought  before  the  grand  jury  with- 

out his  consent  is  not  reversible  error,  when  it  appears  that  he 
was  cautioned  that  he  need  not  make  any  statement,  and  that 
thereupon  he  expressed  a  desire  to  testify. 

2.  It  is  reversible  error  for  the  prosecuting  attorney  to  say,  "If  a  man 

comes  to  me,  and  says,  'Ross,  your  garment  is  a  stolen  garment,' 
I  think  I'll  show  him  where  I  got  it.  I  will  call  in  Mr.  Olson,  and 
show  that  he  made  it.  That  accused  man  ought  to  be  honest  to 
society,  and  if  we  have  a  chain,  and  put  it  around  you,  and  fasten 
it,  and  all  you  have  to  do  is  to  reach  In  your  pocket  and  get  an 
instrument  and  snap  it  asunder,  you  ought  to  do  it;"  because  it 
brings  to  the  attention  of  the  jury  the  fact  that  the  defendant  had 
not  testified  In  his  own  behalf;  also  It  assumes  that  guilt  is  ad- 
mitted by  a  failure  to  disprove  any  fact. 


STATE  r.  TRAUGER. 


108 


Appeal  from  the  District  Court  of  Monona  County;  Hon. 
J.  F.  Oliver,  Judge. 

Conviction  for  burglary.    Reversed. 

George  A.  Oliver,  for  appellant. 

Gkaxger,  J.  1.  The  defendant  was  in  confinement  in  tho 
county  jail  of  ^Monona  while  the  charge  was  pending  before  the 
graiul  jury,  and,  at  the  instance  of  the  grand  jury,  ho  was 
brought  before  it,  and  while  there  he  was  examined  as  to  the 
charge,  and  his  testimony  is  in  record,  and  in  no  ways  tends  to 
his  crimination.  After  the  indictment  was  returned,  defendant 
moved  to  (juash  on  the  ground  of  his  being  so  brought  lx?fore  the 
grand  jury  and  examined.  It  clearly  appears  that  he  was  not 
taken  before  the  grand  jury  at  his  request,  but  it  does  appear, 
very  satisfactorily,  that,  Avhen  before  the  grand  jury,  he  was 
tdld  by  the  county  attorney  that  he  Avas  not  compelled  to  come 
there,  nor  to  make  any  statement  unless  it  was  of  his  own  free 
will,  and  he  believed  it  to  his  interest  to  do  so;  and  lie  was  asked 
if  he  understood  it,  and  he  answered  that  he  did,  and  said :  "I 
witnt  to  tell  it,  because  I  know  just  where  I  got  the  satchel.  I 
bdUiiht  it  of  a  tramp,  and  I  want  to  make  my  statement  before 
the  grand  jury."  George  A.  Oliver  had  before  been  appointed 
by  the  court  to  defend  for  him,  and  he  (the  attorney)  had  no 
notice  of  his  presence  before  the  grand  jury.  The  proceeding 
seems  entirely  free  from  intentional  wrong,  it  appearing  that 
the  county  attorney  had  no  notice  of  it  until  he  came  into  tho 
grand  jury  room  and  foinid  defendant  there,  and,  before  ho  was 
examined,  gave  him  the  information  above  stated.  Affidavits 
of  grand  jurors  fully  substantiate  the  statement  of  the  county 
attorney  as  to  the  information  given  the  defendant,  and  his  ex- 
l)re.ssed  desire  to  make  his  statement.  It  is  true  that  he  states 
otherwise,  but  the  fact  fully  ajipears.  It  is  conceded  that  de- 
fendant could  properly  be  before  the  grand  jury  at  his  own  re- 
(piest.  Xothing  that  we  here  say  should  be  construed  otherwise 
than  as  an  unqualified  disapproval  of  the  act  of  the  grand  jury 
in  bringing  the  defendant  before  it,  on  its  own  motion.  The 
information  given  the  defendant,  when  before  the  grand  jury, 
and  before  he  made  any  statement,  fully  apprised  him  of  his 
right  to  retire,  and  that,  if  he  made  a  statement,  it  must  be  be- 


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AMERICAN  CRIMINAL  REPORTS. 


cause  lio  dcNirod  to  do  so,  in  his  own  interest.  In  view  of  such 
iiifonnntiiiu,  and  of  liis  expressed  desire  to  make  the  statement 
he  did  make,  we  think  tiie  case  stands  as  if  he  had  heen  brought 
hoforo  the  jury  on  his  own  recjnest  for  that  purpose.  It  in 
no  way  appears  that,  up  to  the  time  ho  had  the  informatiim 
and  expressed  the  desire,  he  had  been  prejudiced.  In  fact,  the 
contrary  appears.  It  was  not  error  to  refuse  to  quash  the  in<lict- 
mcnt. 

2.  Tlie  county  attorney  in  his  opening  argument  to  the  jury 
made  use  of  the  following  language:  "Jf  a  man  comes  to  me, 
and  says,  'Ross,  your  garment  is  a  stolen  garment,'  I  think  I'll 
show  him  where  I  got  it.  I  will  call  in  Mr.  Olson,  and  show 
that  he  made  it.  That  accused  man  ought  to  bo  honest  to  so- 
ciety,  and  if  we  have  made  a  chain,  and  put  it  around  you,  and 
fasten  it,  and  all  you  have  to  do  is  to  reach  in  your  pocket  and 
get  an  instrument  and  snap  it  asunder,  you  ought  to  do  it."  The 
following  is  section  5484  of  the  code:  ''Defendants  in  all  crim- 
inal proceedings  shall  be  competent  witnesses  in  their  own  be- 
half, but  cannot  be  called  as  witnesses  by  the  State;  and  should 
a  defendant  not  elect  to  become  a  witness,  that  fact  shall  not 
have  any  weight  against  him  on  the  trial,  nor  shall  the  attorney 
or  attorneys  for  the  State  during  the  trial  refer  to  the  fact  that 
the  defendant  did  not  testify  in  his  own  behalf;  and  should  thoy 
do  so,  such  attorney  or  attorneys  shall  be  guilty  of  a  misde- 
meanor, and  defendant  shall  for  that  cause  alone  be  entitled  to 
a  new  trial."  Whether  or  not  the  language  used  amounts  to  a 
reference  to  the  fact  that  defendant  did  not  testify  in  his  own 
behalf — inasmuch  as  it  does  not  in  terms  do  so — depends  on 
what  the  jury  might  reasonably  understand  from  its  use.  The 
object  of  the  statute  is  to  keep  such  fact  from  the  minds  of  .iie 
jurors,  and  thus  avoid  prejudice  on  account  of  it.  The  first 
part  of  the  statement,  as  to  the  garment,  may  be  said  not  to  refer 
to  defendant ;  but  what  other  application  can  be  put  on  the  other 
part?  It  conunences,  "That  accused  man."  What  accused 
man?  That  it  has  a  different  reference  from  the  first  part  is 
clear,  for  there  he  is  himself  the  accused  man.  In  the  latter 
part  he  says:  "And  if  we  have  made  a  chain,  and  put  it  around 
you,  and  fasten  it,  and  all  you  have  to  do  is  to  reach  in  your 
pocket  and  get  an  instrument  and  snap  it  asunder,  you  ought  to 


STATE  r.  TR AUGER 


1U5 


do  it."  Whether  this  was  addressed  to  the  defendnnt,  or  to  some 
oiic  whom  the  attoniey,  to  iUustrnte,  assumed  to  he  accused,  the 
understanding  from  the  language  is  the  same.  It  means,  when 
given  application  to  a  criminal  trial,  that  when  a  chain  of  cir- 
ciunstancos  is  woven  around  a  defendant,  and  ho  has  the  means 
j>rcsent  with  him  to  break  the  chain,  he  should  use  such  means, 
and  the  inference  is  that,  if  he  does  not,  it  is  a  circunii^tance 
against  him.  We  think  no  juror  would  listen  to  such  a  state- 
ment, in  a  case  where  a  defendant  Imd  not  been  a  witness,  and 
fail  to  understand  that  it  meant  that,  if  the  defendant  could 
deny  the  facts  proven  against  him,  he  would  take  the  witness 
stand  and  do  it.  In  the  first  part  of  the  statement  reference  is 
made  to  evidence  to  be  obtained  from  others,  while  in  the  last 
])art  reference  is  made  to  what  the  accused  has,  as,  if  he  has 
nothing  more  to  do  than  take  an  instrument  from  his  pocket  and 
snap  the  chain  asunder,  he  should  do  it.  The  State  of  ^lissouri 
has  a  statute  quite  similar,  providing  that,  in  such  a  case,  the 
fact  of  not  testifying  shall  not  "be  referred  to  by  any  attorney  in 
tlie  case."  Rev.  Stat.  1889,  §  4219.  In  the  case  of  State  v. 
Moxley,  102  :Mo.  374,  14  S.  W.  Rep.  909,  the  prosecuting  at- 
torney used  the  folhnving  language:  "They  have  offered  not  a 
word  to  explain  or  show  how  that  woman  came  to  her  death. 
Kot  a  neighbor  was  put  upon  the  stand,  if  I  am  right, — man, 
woman,  or  child,  kinsman  or  stranger, — to  show  what  he  said 
had  caused  hor  death,  gentlemen.  Instead  of  hunting  up  an  ex- 
planation made  by  him  to  his  neighbors, — or,  if  they  ever  made 
an  effort,  they  never  produced  the  result  of  that  effort  in  the 
court.  There  they  are,  alone, — she  in  perfect  health ;  and  in  the 
night-time  she  comes  to  her  death  suddenly.  We  say  that  com- 
mon honesty,  common  decency,  require,  at  the  hands  of  that 
man,  when  he  sees  his  neighbors,  to  tell  how  she  came  to  her 
death.  I  don't  care  whether  innocent  or  guilty.  If  guilty,  he 
goes  to  work  to  make  up  a  story ;  if  innocent,  he  tells  the  truth. 
The  neighbors  expected  it  of  him.  Your  neighbors  would  ex- 
pect it  of  you;  and,  gentlemen,  you  would  expect  it  of  your- 
selves." In  that  case  the  court,  after  defining  the  words  "I'c- 
ferred  to"  as  meaning  "alluded  to,"  said  as  follows :  "If  the  ob- 
ject of  the  statute  was  to  prevent  the  jury  from  considering  the 
fact  that  a  defendant  has  failed  to  testify,  it  is  easy  to  see  that 


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AMERICAN  CRIMINAL  REPORTS. 


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OS  mnc'li  couM  be  nccoiuplislietl  to  (1(  feat  that  object  by  an  al- 
lusion to  such  facts  as  by  rcfciviico  thereto.  The  language  of 
Avhich  conipliiint  is  made  was  simply  an  adroit  and  insiniiativo 
Httcmpt  indirectly  to  accomplish  what  could  not  have  been  ac- 
complished by  a  direct  statement.  The  statute  does  not  permit 
such  evasions  of  its  manifest  purpose."  The  language  in  that 
ease  is  not  as  clearly  violative  of  the  statute  as  is  the  language 
in  this  case.  It  may  be  well  to  also  state,  as  this  is  a  criminal 
case,  that  the  language  used  does  not  meet  the  letter  or  spirit  of 
the  law  in  a  criminal  case.  It  violates  the  rule  substantially  an- 
nounced in  ail  L-rimlnal  trials,  that  the  defendant  is  presumed 
innocent  until  guilt  is  established  by  the  State.  Guilt  is  not  to 
be  presumed  from  a  failure  to  disprove  any  fact.  No  convic- 
tion could  rest  under  an  iiistruction  announcing  a  rule  like 
that  involved  in  the  statement  of  the  county  attorney.  A  new 
trial  Avas  asked  because  of  the  langmige  used  by  the  county  at- 
torney, and  it  was  error  to  refuse  it.    Keversed. 


Pickett  v.  State. 

Texaa  Court  of  Criminal  Appeals— 51  S.  W.  Rep.  374. 

Decided  May  31,  1899. 

Argumext  of  Counsel:  Error  to  refer  to  previous  trial  of  same  case. 

The  provision  of  the  statute  which  reads:  "The  effect  of  a  new  trial 
Is  to  place  the  cause  In  the  same  position  In  which  It  was  before 
any  trial  had  taken  place.  The  former  conviction  shall  be  re- 
garded as  no  presumption  of  guilt;  nor  shall  it  be  alluded  to  In 
argument,"  is  mandatory;  hence  it  Is  reversible  error  for  the 
prosecuting  attorney,  in  his  argument,  to  state  to  the  jury,  "the 
defendant  has  been  three  times  tried  and  once  convicted." 

Appeal  from  tlie  District  Court  of  Brown  County. 

G.  W.  Pickett,  being  convicted  of  manslaughter,  appeals. 

Rolert  A.  John,  Assistant  Attorney-General,  for  the  State. 

Brooks,  J.  Appellant  was  convicted  of  manslaughter,  and 
his  pimishment  assessed  at  confinement  in  the  penitentiary  for 
a  term  of  two  years ;  and  he  appeals. 


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PICKETT  V.  STATR 


107 


We  linvo  examined  nil  of  npiu'llant'-  assignmenta  of  error, 
and,  in  the  view  we  take  of  this  cane,  it  is  only  necessary  to  dis- 
(M1SH  one  of  them.  Appellant's  hill  of  exceptions  No.  8  complains 
ot"  the  action  of  the  district  attf)rney  in  his  opening  argument  to 
the  jury,  in  that  ho  nsed  the  fidlowing  Inngnnge,  to  wit:  "Cliff 
Wi'stcniian  says  that  he  never  told  any  one  of  the  threats  made 
hy  Ftisfer  until  after  defendant  was  convicted.  Ah!  then  was 
the  time  to  dig  this  evidence  up,  and  they  dug  it  np."  To  which 
defendant  excepted,  and  the  district  attorney  proceeded  with 
his  argument,  without  any  statement  heing  made  by  the  court. 
And  T.  C.  Wilkinson,  private  ])roseoutor,  in  his  closing  address 
to  the  jury,  said:  ''The  defendant  has  been  three  times  tried, 
iind  once  convicted."  To  which  statement  the  defendant  ex- 
eeptcMl.  Thr'  court  charged  the  jury  in  reference  to  this  matter 
as  frdlows:  "The  remarks  made  by  the  prosecution,  that  defend- 
ant had  been  once  before  convicted,  will  not  be  considered  by 
you  for  .my  purpose."  Article  823  of  the  Code  of  Criminal 
Procedure  provides:  "The  effect  of  a  new  trial  is  to  place  the 
cause  in  the  same  position  in  which  it  was  before  any  trial  had 
tiiken  itliice.  The  former  conviction  shall  be  regarded  as  no  pre- 
suiiiptiou  of  guilt,  nor  shall  it  bo  alluded  to  in  the  argument." 
cFudge  White,  in  delivering  the  opii.ion  of  the  court  in  Hatch  v. 
Slate,  S  Tex.  App.  420,  uses  this  language:  "There  can  be  no 
mistake  as  to  the  meaning  of  the  words  used,  or  the  intention 
of  the  legislature  in  prescribing  that  upon  a  second  or  new  trial 
in  a  criminal  case  a  former  conviction  shall  be  regarded  as  no 
]>resumption  of  guilt,  nor  shall  it  be  alluded  to  in  tlie  argmncnt. 
^len  are  oftentimes  convicted  illegally,  and  in  contravention  of 
some  important  right  conferred  by  law;  and  it  would  be  not 
oidy  unjust,  but  inhuman,  to  claim  that  such  conviction  should 
weigh  a  single  particle  in  the  estimation  of  their  guilt  upon  an- 
other trial.  The  fact  that  the  former  conviction  has  been  set 
aside  and  a  new  trial  awarded,  even  if  done  upon  grounds 
merely  'technical,'  or  upon  grounds  which,  in  the  estimation  of 
some,  may  a])pear  'foolish,'  does  not  in  the  slightest  alter  the 
rule,  or  the  reason  of  the  rule."  Ever  since  the  decision  in  the 
above-cited  ease,  this  court  has  uniformly  held  that  the  fact  of 
a  former  conviction  shall  not  be  alluded  to  in  the  argument  of 
the  case  by  the  prosecution,  and  yet  Ave  find  in  this  case  that  it 


iiA 


108 


AMERICAN  CRIMINAL  REPORTS. 


was  done  in  two  several  instances  by  the  prosecuting  attorneys. 
The  statute  above  quoted  is  mandatory.  We  have  no  inclination 
or  power  to  disregard  its  beneficent  provisions.  We  are  con- 
strained to  reverse  this  judgment  because  of  the  violation  of  a 
plain  and  positive  provision  of  the  statutory  law  of  this  land. 
House  V.  State,  9  Tex.  App.  5G7;  Moore  v.  State,  21  Tex.  App. 
GC)G,  2  S.  W.  Rep.  887. 

The  court's  charge,  together  with  the  requested  charges  given, 
cover  the  law  of  this  case.  For  the  error  discussed,  the  judg- 
ment is  reversed,  and  the  cause  reiuanded. 


People  v.  Smith. 

121  Gal.  355—53  Pac.  Rep.  802. 

Decided  July  1,  1898. 

Argument  of  Counsel:  Homicide:  Venue — Use  and  scope  of  a  deposi- 
tioii — Plea  of  once  in  jeopardy. 

1.  Although  no  witness  expressly  testified  as  to  venue,  yet  It  may  be 

regarded  as  proved  where  it  sufficiently  appears  from  all  of  the 
evidence  taken  together. 

2.  Such  proof  may  be  gleaned  from  a  deposition  taken  at  an  inquest, 

and  which  was  used  at  the  trial  without  objection,  although  it 
was  introduced  for  a  different  purpose.  When  once  in  evidence 
it  was  competent  evidence  for  any  legitimate  purpose. 

3.  A  defendant  may  waive  the  incompetency  of  evidence,  by  failing  to 

object  to  it  on  that  ground. 

4.  If  a  defendant  pleads  both  once  in  jeopardy  and  not  guilty,  and  the 

former  is  found  against  him,  and  there  is  a  disagreement  as  to 
the  la  ".'■,  on  a  new  trial  it  is  not  necessary  to  retry  the  former 
issue;  out  if  the  defendant  desires  to  avail  himself  of  any  errors 
in  the  trial  of  the  former  plea  he  may  assign  them  when  he  makes 
his  motion  for  new  trial  on  the  verdict  of  guilty. 
6.  It  is  highly  improper  for  the  district  attorney  to  argue  to  the  jury 
that  because  the  defense  did  not  call  a  certain  witness  alleged  to 
have  been  present  at  the  homicide,  that  therefore  the  presumption 
of  law  is  that  his  testimony  would  have  been  adverse  to  the  de- 
fense; and  to  tell  them  that  such  witness  had  been  subpoenaed  by 
the  defense. 

Appeal  from  the  Superior  Court  of  Kern  County. 
The  facts  appear  in  the  opinion. 

IT'.  F.  Fitzgerald,  Attorney-General,  and  He7iry  E.  Carter, 
Deputy  Attoniey-General,  for  the  People. 

/.  ir.  Ahem  and  J.  IF.  Laird,  for  the  appellant. 


PEOPLE  I'.  SMITH. 


100 


Van  Fleet,  J.  Defendant  Avas  convicted  of  manslaughter 
for  the  killing  of  one  Emelio  Bencomo,  in  the  county  of  Kem, 
and  was  adjudged  to  suffer  imprisonment  in  the  State  prison  for 
the  term  of  ten  years.  lie  appeals  from  the  judgment  and  from 
an  order  denying  him  a  new  trial. 

1.  Appellant's  first  contenti(in  is  that  there  was  no  evidence 
to  prove  venue.  But  this  ohjectiofi  is  not  sustained  by  the  rec- 
ord. It  is  true,  as  appellant  urges,  that  no  witness  was  asked 
the  direct  question,  nor  testified  in  so  many  words,  that  the  kill- 
ing took  place  in  Kern  county ;  but  this  was  not  essential  if  the 
fact  otherwise  sufliciently  appeared.  Appellant  contends  that 
the  only  evidence  touching  upon  the  question  was  contained  in 
tlie  deposition  of  the  witness  Miller,  taken  at  the  coroner's  in- 
quest; that  this  deposition  was  introduced  at  the  trial  for  an- 
other pui-pose,  and  was  not  competent  or  admissible  to  prove 
venue.  The  deposition  was  introduced  and  read  in  its  entirety 
without  objection,  and  while  the  primary  purpose  of  its  intro- 
duction was  apparently  other  than  to  establish  the  venue,  the 
purpose  was  not  limited,  and,  being  in  evidence,  could  be  re- 
garded in  aid  of  any  fact  which  it  intended  to  establish.  A  de- 
fondant  may  waive  the  objection  that  evidence  is  incompetent, 
and  a  failure  to  object  to  it  on  that  ground  is  such  waiver.  But, 
independently  of  the  deposition,  there  was  evidence  sufiicient  to 
show  that  the  offense  was  committed  in  the  county  of  Kem.  All 
of  the  witnesses  refer  to  and  designate  the  place  where  deceased 
was  shot  and  killed  as  being  at  ''Scodie's  store,"  and  it  incident- 
ally appears  in  the  testimony  of  several  of  the  witnesses,  and 
without  conflict,  that  this  store  was  in  the  town  of  Onyx,  in 
Kem  county. 

2.  At  the  first  trial  of  the  case  in  February,  1897,  the  defend- 
ant, with  his  plea  of  not  guilty,  introduced  the  plea  of  "once  in. 
jeopardy."  As  a  result  of  that  trial  the  jury  returned  this  ver- 
dict: "We,  the  jury  impaneled  to  try  the  above-entitled  cause, 
find  for  the  People  pon  the  plea  of  once  in  jeopardy,  intro- 
duced by  defendant,  that  is,  we  find  that  he  has  not  been  in 
jeopardy.    James  Curran,  Foreman." 

But  upon  the  plea  of  not  guilty  to  the  charge  laid  in  the  in- 
formation the  jury  announced  that  they  were  unable  to  agree 
upon  a  verdict,  and  were  discharged.     Subsequently,  in  May. 


Hr:1 


110 


AMERICAN  CRIMINAL  REPORTS. 


1*4' I, 


in 


Sir:>. 


1897,  the  cause  was  tried  a  second  time.  The  record  does  not 
<liseloso  whotlier  the  issue  raised  l)y  the  plea  of  jeopardy  was 
again  sul)mittcd  to  the  jury  upon  this  second  trial,  or  that  any 
evidence  was  offered  in  support  thereof;  hut  the  jury  returned 
a  verdict  convicting  defendant  of  manslaughter,  without  any 
mention  of  the  special  plea.  Thereupon  the  defendant  made  a 
motion  for  a  new  trial,  hut  made  no  mention  therein,  nor  in  his 
hill  of  exceptions,  of  said  plea  of  jeopardy,  or  any  assignment 
of  error  based  thereon  or  growing  out  of  the  trial  thereof,  in  any 
way.  His  motion  was  denied  and  judgment  entered  against 
him,  which  constitute  the  order  and  judgment  from  which  this 
appeal  is  prosecuted. 

It  is  now  urged  that  defendant  was  entitled  to  have  his  special 
plea  again  submitted  to  the  jury  on  his  second  trial,  and  to  a 
verdict  thereon  at  their  hands,  and  that  the  judgment  could  not 
competently  be  entered  against  him  without  such  finding,  In 
other  words,  appellant's  position  is  that  the  verdict  of  the  jury, 
upon  the  issue  at  his  first  trial,  by  reason  of  the  failrve  to  find 
upon  the  question  of  giiilt,  went  for  naught,  was  wholly  nuga- 
tory, and  should  not  have  been  received — apparently  upon  the 
theory  that,  as  no  final  judgment  of  conviction  could  be  entered 
upon  such  verdict,  no  appeal  would  lie  therefrom,  nor  any  tp- 
portunity  be  afforded  to  the  defendant  to  have  the  trial  of  tlat 
issue  reviewed ;  and  consequently  that  that  issue  should  now  bo 
regarded  as  if  never  tried. 

But  this  objection  is  determined  adversely  to  the  position  of 
the  appellant  by  the  case  of  People  v.  Majors,  G5  Cal.  138,  148, 
52  Am.  Rep.  295.  In  that  case  the  defendant,  under  an  indict- 
ment for  murder,  had  been  previously  tried  upon  the  ])loa  of 
"former  conviction,"  and  a  verdict  found  against  him  thereon ; 
siibscquontly  he  was  placed  on  trial  under  the  same  indictment, 
upon  his  plea  of  not  guilty.  At  this  second  trial  he  aske<l  to  be 
permitted  to  again  interpose  the  special  plea,  but  this  was  re- 
fused, and  the  refusal  was  assigned  as  error.  The  (ibjeetion 
was  briefly  answered  in  this  court  by  the  obvious  suggestion  that 
"the  defendant  ha<l  been  tried  on  his  plea  of  former  conviction, 
and  it  was  not  the  duty  of  the  court  to  grant  him  another  trial 
on  that."  T'pon  reason  and  principle  this  must  be  so.  Why 
should  a  defendant  be  entitled  to  a  second  trial  of  such  an  issue 


PEOPLE  V.  SMITH. 


Ill 


nnj  more  than  that  of  guilt — except  for  error?  But  it  is  said 
lliiit  it  was  error  to  receive  such  partial  verdict;  that  the  con- 
tciiiplation  of  the  statute  is  that  the  pleas  of  the  defendant  shall 
lie  tried  and  deterniinetl  together.  It  is  true  that  such  is  the 
more  usual,  more  expeditious,  and  more  desirahle  mode  of  try- 
ing criminal  cases;  hut  there  is  nothing  in  the  statute,  nor  any 
reason,  imperatively  demanding  that  course.  A  plea  of  this 
character  is  in  no  way  dependent  upon,  or  interwoven  with,  that 
of  "not  guilty,"  hut  is  separate  and  apart  therefrom;  and  there 
is  nothing,  therefore,  in  the  nature  of  things  precluding  the 
idea  of  trying  it  separately.  The  defendant  had  a  verdict  in 
response  to  hoth  his  pleas  hefore  final  judgment  was  entered, 
and  that  was  all  he  was  entitled  to. 

l)Ut  it  is  said  that  in  such  case  defendant  can  have  no  oppor- 
tunity to  have  reviewed  any  error  occurring  in  the  trial  of  his 
special  jilea.  This  is  refuted  hy  the  ruling  i.i  the  Majors  Case, 
ahove  referred  to,  and  hy  the  provisions  of  the  statute.  The  fact 
that  the  special  ])lea  has  heen  tried  first,  no  matter  how  long  he- 
fore  the  question  of  guilt  is  determined,  does  not  preclude  a  de- 
fendant from  moving  for  a  new  trial  for  any  error  arising 
therein.  As  suggested  in  the  first  appeal  in  People  v.  Majors, 
(55  Cal.  100,  the  statute  does  not  contemplate  a  motion  for  a  new 
trial  until  all  the  issues  of  fact  have  been  tried.  When  those 
isssues  have  been  determined,  and  before  final  judgment  is  en- 
tered, the  defendant  lias  his  motion  for  a  new  trial,  upon  which 
may  be  assigned  and  reviewed  the  errors,  if  any,  occurring  in 
the  trial  of  any  or  all  of  the  issiies.  That  was  the  course  pur- 
sued and  recognized  in  People  v.  Majors,  first  above  cited  (65 
Cal.  138),  and  to  our  minds  a  perfectly  proper  and  logical  one. 

3.  The  most  serious  excejition  in  the  case  is  that  based  upon 
certain  statements  of  the  district  attorney  made  in  his  closing 
argument  to  the  jury,  and  the  ruling  of  the  court  thereon.  The 
evidence  disclosed  that  there  were  present  at  the  time  Bencomo 
was  killed  but  four  persons  other  than  deceased — the  defendant, 
his  brother,  John  Smith,  one  Porfirio  Tapia,  and  a  lad  named 
Harvey  ^lills.  John  Smith,  the  brother,  was  informed  against 
jointly  with  defendant  for  the  murder  of  the  deceased,  but  prior 
to  the  trial  had,  on  motion  of  the  district  attorney,  been  ordered 
discharged.     Whether  he  had  in  fact  been  discharged,  or  was 


lilt 


112 


AMERICAN  CRIMINAL  REPORTS. 


ii'    \ 


for  some  reason  still  in  custody  at  the  time  of  the  trial,  the  rec- 
ord does  not  disclose.  It  was  suggested  at  the  arginnent  that  ho 
was  yet  in  custody,  but  there  was  no  evidence  to  show  that  such 
was  the  fact.  There  is  nothing  in  the  record  to  show  that  ho 
was  present  at  the  trial  or  in  the  county,  or  even  within  reach  of 
the  process  of  the  court  at  that  time ;  and  he  was  not  called  as 
a  witness.  Tapia  and  Mills  were  the  principal  witnesses  for  tho 
State;  they  testified  at  the  trial  that  the  deceased  was  shot  and 
killed  by  defendant,  and  they  gave  their  version  of  the  details 
of  the  shooting.  There  was  evidence,  however,  on  the  part  of 
the  defense  tending  more  or  less  strongly  to  impeach  the  testi- 
mony of  these  witnesses,  by  showing  that  they  had  both  thereto- 
fore made  statements  at  variance  with  their  evidence,  to  the  ef- 
fect that,  while  they  were  near  the  place  of  the  shooting  at  the 
time  it  occurred,  they  did  not  see  it,  nor  know  who  did  it ;  in  fact 
it  Avas  shown  that  they  had  testified  substantially  to  that  effect 
before  the  coroner  at  the  inquest  on  the  body  of  deceased,  and 
again  at  the  preliminary  examination  of  the  accused.  The  de- 
fense was  that  the  defendant  did  not  commit  the  act;  and  in 
jupport  of  this  defense  the  defendant  testified  that  he  was  going 
to  or  standing  bj'  his  horse  at  some  distance  from  and  with  his 
back  to  the  deceased  at  the  time  the  shots  were  fired;  that  he 
heard  the  shots,  but  did  not  do  the  shooting,  nor  see  who  did  it ; 
that  when  he  started  to  go  to  his  horse  he  left  his  brother  John 
and  the  deceased  in  conversation,  and  that  when  he  returned  to 
where  the  deceased  was  lying  after  the  shots  were  fired  his 
brother  was  still  there,  and  told  him  that  deceased  had  shot  him- 
self. 

AVe  arc  not  to  judge  of  the  probabilities  of  this  defense,  nor  of 
the  case  made  by  the  prosecution;  those  were  questions  exclu- 
sively for  the  jury.  But  the  defendant  was  entitled  as  of  right 
to  have  the  question  of  his  guilt  determined  solely  xipon  the  evi- 
dence placed  before  the  jury,  and  this  right  it  is  claimed  was 
denied  him  by  what  follows.  During  his  closing  argument  the 
district  attorney  stated  to  the  jury:  "There  was  prese  it  at  that 
shooting  Gonzales  Smith,  John  Smith,  Tapia,  Harvey  ^Mills; 
and  Emclio  Bencomo  was  killed.  Now,  sir,  !Mr.  Tapia  and  ^Ir. 
Han-ey  !Mills  came  on  this  stand  and  told  you  the  story  of  tho 
shooting.    Mr.  Gonzales  Smith  comes  on  to  that  stand,  the  de- 


PEOPLE  V.  SMITtt 


113 


fendant,  and  denies  the  story  as  given  by  those  two  men.  "Now, 
sir,  I  say,  'Where  is  John  Smith  V  "  At  this  point  the  defend- 
ant interposed  this  objection :  '*If  your  honor  please,  we  object 
to  the  district  attorney  commenting  on  the  fact  that  John  Smith 
was  not  called  as  a  witness  by  the  defendant,  and  we  ask  the 
court  to  instruct  the  district  attorney  that  he  has  no  right  to 
comment  on  that  to  the  jury." 

"The  district  attorney :  'That  is  just  exactly  the  proposition 
I  propose  to  talk  to  you  about,  and  you  gentlemen  can  see  the 
defense  is  afraid  of  it  or  they  never  would  have  squealed.'  The 
defendant  again  objected  to  the  remarks  of  the  district  attor- 
ney as  improper,  and  asked  for  a  ruling  of  the  court  on  this  ob- 
jection. The  court  ruled  that  'the  district  attorney  can  com- 
ment on  the  fact,  if  he  desires  to.*  To  Avhich  ruling  the  defend- 
ant excepted.  Thereupon  the  district  attorney  further  stated  to 
the  jury:  'The  presumption  of  the  law  is  that,  if  John  Smith 
had  testified  before  you  gentlemen  as  to  the  facts  in  this  case- — 
the  presumption  of  the  law  is  that  his  testimony  would  have 
been  adverse  to  the  defense.'  To  this  statement  the  defendant 
ol)jocted  as  improper,  and  asked  a  ruling  of  the  court. 

"The  court:  'Let  the  district  attorney  proceed  with  his  argu- 
ment.' 

"The  defendant's  attorney:   'N'ote  an  exception.' 

"The  district  attorney:  'He  Avas  subpcenaed  as  a  witness  on 
the  part  of  the  defense,  and  not  put  on  the  stand.' 

"The  defendant's  attorney :  'Note  an  exception  to  the  remark 
of  the  district  attorney  commenting  on  something  that  is  not  in 
evidence.' 

"The  court:  'You  have  got  the  benefit  of  the  objection,  on 
this  particular  line  of  the  district  attorney's  argument,  and 
don't  interrupt  him  any  more.'  " 

It  is  hardly  necessary  to  say  that  these  statements  by  the  dis- 
trict attorney  were  under  the  circumstances  wholly  unauthorized 
and  highly  improper;  and  that  the  overruling  by  the  court  of 
defendant's  objections  thereto  was  error.  Nor  can  we  avoid  the 
conclusion  that  the  error  was  one  calculated  to  greatly  prejudice 
the  defendant's  case.  There  was,  as  we  have  seen,  no  evidence 
to  warrant  the  fact  stated  by  the  district  attorney  in  the  remarks 
quoted,  nor  the  unfavorable  inference  deduced  therefrom;  and 
You  XI -8 


V  J:. 


I  m  i ' 


M:'\ 


i^-r 


nm 


114 


AMERICAN  CRIMINAL  REPORTS. 


yet  the  court  by  its  nilings  implicitly  told  the  jury  that  both  the 
statoinont  of  facts  and  the  deduction  made  by  the  district  at- 
torney therefrom  we-e  proper  matters  for  their  consideration. 
Tf  the  jury  acted  in  the  belief,  as  presumptively  they  did,  that 
John  Smith  was  not  called  by  the  defendant  because  he  knew 
that  his  evidence  would  be  against  him,  the  consideration  could 
but  hear  heavily  against  the  degree  of  credence  they  might  other- 
wise, and  in  view  of  the  strong  impeachment  of  the  main  wit- 
nesses of  the  proscL'Liii  ■  '  ^ve  given  the  case  of  the  defendant; 
since  it  appeared  Mh'  .  :,-^ict  that  John  Smith  was  an  eye 
witness  of  the  affairj  ui.a  ilhMofore,  presumably,  knew  the  truth 
as  to  whether  the  decfosed  was  killed  by  the  defendant  or  shot 
himself.  The  error  A\as,  tl.  '-pfoi  n  material  one,  and  for  it  the 
cjise  must  be  reversed.  The  rule;  i^  lai:  orsal  that  it  is  error  to 
pemit  counsel,  against  objection,  in  argument  before  the  jury, 
to  make  statements  of,  or  comments  upon,  facts  not  in  evidence ; 
and,  unless  the  court  can  see  clearly  that  tho  error  was  as  to  some 
matter  which  could  not  in  its  nature  have  prejudiced  the  defend- 
ant's case,  the  judgment  will  be  reversed.  People  v.  Mitchell, 
G2  Cal.  4:11\  State  v.  Hatcher,  29  Oreg.  309. 

AVe  find  no  other  error  in  the  case ;  the  action  of  the  court  in 
modifying  the  instructions  complained  of  was  proper,  and  its 
rulings  upon  evidence  correct. 

For  the  error  above  pointed  out  the  judgment  and  order  are 
reversed  and  the  cause  remanded. 

Gaboutte,  J.,  McFaklaxd,  J.,  IIakkison,  J.,  Hensiiaw, 
J.,  and  Temple,  J.,  concurred. 

Notes  ox  Argument  of  Covxsei  (by  H.  C.  G.)- — Because  of  the  gen- 
eral practical  Importance  of  the  subject  of  "Argument  of  Counsel"  in 
criminal  cases,  it  has  been  deemed  advisable  to  collect  some  of  the 
many  important  decisions  in  which  reversals  have  been  ordered  because 
of  abusive,  inflammatory,  sinister,  scurrilous,  reckless,  demagogic,  un- 
just, and  generally  uncalled  for  and  improper  remarks  and  appeals  to 
juries  by  public  prosecutors.  It  is  unnecessary  to  give  cases  where  re- 
marks were  held  not  to  be  ground  for  reversals,  as  that  is  in  the  nature 
of  a  negative,  and  would  swell  the  notes  without  advantage.  The  ob- 
ject is  not  to  suggest  what  ought  to  be  said,  for  that  is  a  range  well 
nigh  infinite,  which  must  be  guided  by  a  spirit  of  prudence  under  the 
circumstances  of  each  case,  but  rather  to  point  out  what  ought  not  be 
Baid. 


PEOPLE  V.  SMITH. 


115 


The  reason  of  the  rule  placing  limitations  upon  the  arguments  of 
counsel  before  juries  has  been  aptly  stated  in  the  following  cases. — In 
Tucker  V.  Henniker,  41  N.  H.  317,  the  court  said  that  the  largest  and 
most  liberal  freedom  of  speech  is  allowed,  and  that  the  range  of  dis- 
cussing the  merits  of  the  case  is  unabridged;  that  counsel  may  descant 
upon  the  facts  proved  or  admitted  in  the  pleadings,  or  arraign  the  con- 
duct of  parties;  may  impugn,  excuse,  justify  or  condemn  motives,  so 
far  as  they  are  developed  in  evidence,  and  assail  the  credibility  of  wit- 
nesses. "His  illustrations  may  be  as  various  as  the  resources  of  his 
genius;  his  argumentation  as  full  and  profound  as  his  learning  can 
make  it;  and  he  may,  if  he  will,  give  play  to  his  wit,  or  wings  to  his 
imagination."  But  that:  'It  is  irregular  and  illegal  for  counsel  to  com- 
ment upon  facts  not  proven  before  the  jury,  as  true,  and  not  legally 
competent  and  admissible  in  evidence." 

In  Brown  v.  Stoineford,  44  Wis.  232,  the  doctrine  was  very  clearly 
and  forcibly  set  forth:  "It  Is  the  duty  and  right  of  counsel  to  Indulge 
in  all  fair  argument  in  favor  of  the  right  of  his  client;  but  he  is  out- 
side of  his  duty  and  his  right  when  he  appeals  to  prejudice  irrelevant 
to  the  case.  Prot)erly,  prejudice  has  no  more  sanction  at  the  bar  than 
on  the  bench.  But  an  advocate  may  make  himself  the  alter  ego  of  his 
client,  and  indulge  in  prejudice  in  his  favor.  He  n  ay  even  share  his 
client's  prejudices  against  his  adversary,  as  far  as  they  rest  on  the 
facts  In  the  case.  But  he  has  neither  the  duty  nor  the  right  to  appeal 
to  prejudices,  just  or  unjust,  against  his  adversary,  dehors  the  very 
case  he  has  to  try.  The  very  fullest  freedom  of  speech,  within  the  duty 
of  his  profession,  should  be  accorded  to  counsel;  but  it  is  license,  not 
freedom  of  speech,  to  travel  out  of  the  record,  basing  his  argument  ou 
facts  not  appearing,  and  appealing  to  prejudices  irrelevant  to  the  case 
and  outside  the  proof."  According  to  this  opinion,  one  reason  for  hold- 
ing counsel  strictly  to  matters  of  record  is,  that  while  the  trial  judge 
may  instruct  the  jurors  to  consider  only  the  evidence  legally  before 
them,  it  is  not  certain  that  they  will  always  do  so;  for,  not  taking  writ- 
ten notes  of  the  evidence,  they  sometimes  may  not  discriminate  be- 
tween the  evidence  actually  given  and  the  statements  and  conclusions 
of  counsel  as  to  outside  facts,  and  thus  be  prejudiced. 

In  Mitchum  v.  State,  11  Ga.  615,  in  which  the  prosecutor  In  answer 
to  a  statement  of  defendant's  counsel  that  one  Eilands,  a  witness,  wa,^ 
locked  up  on  the  Sabbath  before  the  trial,  with  the  prosecutor  and 
father-in-law  of  the  deceased,  and  that  he  was  a  willing  and  bribed 
witness,  said  to  the  jury  that  Eilands  was  an  unwilling  witness  and 
had  refused  to  come,  and  was  brought  by  arrest  tinder  attachment, 
none  of  which  was  in  evidence.  The  Supreme  Court  held  the  remarks 
improper,  and  discussed  at  length  the  duties  and  limitations  of  counsel 
in  argument,  and  the  policy  of  the  law  relating  thereto.  They  went 
back  to  the  Magna  Charta  for  its  foundation,  claiming  that  it  was  only 
by  a  well-defined  policy  In  regulating  the  arguments  of  zealous  counsel 
that  the  guaranty  of  a  fair  and  impartial  trial  could  be  preserved. 
They  descant  upon  the  high  position  and  influence  of  the  English  and 
American  bars,  and  their  unequaled  power  in  maintaining  popular 
rights,  and  the  Integrity  of  the  individual.    That  justice  can  only  be 


1 

■ 

'fl ' 

if  i  ■ 

, 

1 

116 


AMERICAN  CRIMINAL  REPORTS. 


If 


vk- , 


1^  ;:'? 


V' 


aflmlnlsteretl  by  having  methods  of  certainty  in  ascertaining  facts,  and 
that  a  juror,  even,  cannot  lawfully  use  his  own  personal  knowledge  of 
facts  pertinent  to  the  trial,  but  must  be  sworn  and  depose  as  a  wit- 
ness; and  they  aslc  what  kind  of  justice  would  result,  if  counsel  were 
to  descend  to  a  combat  of  statements  and  contradictions  and  unproved 
facts.  If  allowed  to  men  of  high  honor  and  veracity,  it  must  be  al- 
lowed to  all,  and  the  practice  would  turn  the  course  of  justice  into  con- 
fusion, uncertainty  and  Injustice. 

That  it  is  necessary  to  preserve  the  honor  and  integrity  of  the  bar 
Itself  that  such  limitations  should  be  imposed,  and  that  "where  coun- 
sel are  permitted  to  state  facts  in  argument  and  to  comment  upon 
them,  the  usage  of  the  courts  regulating  trials  is  departed  from,  the 
laws  of  evidence  are  violated,  and  the  full  benefit  of  trial  by  jury  is 
therefore  denied." 

Accusing  defendant  of  prior  crimes  before  evidence  is  heard. — At 
the  first  opening  to  the  jury,  before  evidence  was  given,  the  district 
attorney  made  these  statements:  "The  defendant  committed  a  crime  in 
the  old  country — in  Germany, — and  fled  from  justice.  He  engaged 
passage  in  one  ship  and  then  in  another.  He  landed  in  this  country, 
and  went  to  Philadelphia,  committing  a  crime  there.  He  admitted 
that  he  knocked  a  hole  in  a  man's  head  in  the  old  country,  and  by  his 
admission  fled  and  committed  a  crime  in  Philadelphia, — a  crime  on  one 
of  the  citizens  of  this  country."  The  court  overruled  objection  to  these 
remarks,  saying  that  he  permitted  them  as  far  as  to  state  the  previous 
histoiy  of  the  defendant,  though  he  suggested  that  because  he  commit- 
ted one  crime  it  was  no  evidence  that  he  committed  the  one  for  which 
he  was  to  be  tried.  The  district  attorney  continued, — "he  assumed  an- 
other man's  name.  He  obtained  money  under  false  pretenses:"  with 
reiterations.  At  the  close  the  judge  instructed  the  jury  not  to  regard 
any  such  statements,  as  they  were  not  in  the  case.  The  court  held  that 
this  instruction  did  not  cure  the  error  nor  undo  the  wrong  already 
done.  That  such  statements  would  have  been  incompetent  if  offered 
as  evidence  under  oath,  and  were  much  more  improper  when  urged 
through  the  authority  of  the  prosecutor,  "and  produced  a  greater  and 
more  lasting  efl'ect."  "These  remarks  of  the  district  attorney,  so 
grossly  improper,  unprofessional,  and  unjust,  and  so  repeated  and  as- 
severated to  the  jury,  whfen  their  minds  were  entirely  free  from  bias, 
prejudice  or  partiality,  and  when  they  had  no  knowledge  or  opinion 
of  the  defendant  or  of  the  merits  or  demerits  of  his  prosecution,  and 
before  they  had  heard  any  evidence,  and  when  they  were  bound  to 
presume  him  innocent,  must  have  produced  an  ineffaceable  and  per- 
manent impression.  After  hearing  the  recital  of  these  crimes  charged 
to  have  been  committed  by  him,  and  that  he  was  yet  a  fugitive  from 
justice,  their  suspicions  were  aroused,  and  in  their  minds  the  proba- 
bility of  his  guilt  in  the  present  case  was  already  established,  and  they 
were  ready  and  in  a  fit  mood  to  construe  every  fact  and  circumstance 
in  the  evidence  that  was  afterwards  produced,  and  resolve  all  doubts, 
against  the  prisoner  at  the  bar.  Then,  after  all  the  evidence  is  given 
and  their  opinions  were  forming  or  already  formed — whether  from  the 
evidence  alone,  or  from  the  evidence  corroborated  and   strengthened 


PEOPLE  V.  SMITH. 


117 


by  these  terrible  charges  of  the  district  attorney,  they  could  not  tell, — 
and  after  the  court  had  said  in  their  presence,  directly  In  connection 
with  those  charges  of  previous  crimes,  'I  suppose  the  previous  history 
of  the  defendant  may  be  given,'  what  avail  was  It  for  the  court  to  In- 
struct the  jury  that  they  need  not  regard  any  statement  of  the  district 
attorney  that  the  defendant  committed  a  crime  in  Germany,  etc.?  They 
had  already  regarded  it.  It  was  fastened  upon  their  minds,  and  was 
mingled  with  the  testimony,  past  the  possibility  of  separation,  and  it 
had  been  weighed  with  the  testimony  in  those  nicely  balanced  scales 
which  are  made  so  easily  to  preponderate.  The  statements  had  been 
deliberately  made,  and  they  were  approved  by  the  court.  It  was  too 
late,  at  the  end  of  the  trial,  to  correct  the  error.  Their  full  effects  upon 
the  minds  of  the  jury  had  been  produced  in  prejudicing  them  against 
the  prisoner,  and  unfitting  them  for  an  Impartial  hearing  of  the  evi- 
dence and  trial  of  the  case.  What  though  they  were  told  by  the  court 
that  'the  fact  that  the  defendant  committed  one  crime  was  no  evidence 
that  he  committed  this?'  This  language  of  the  court  came  very  near 
sanctioning  the  charge  made  by  the  district  attorney,  or  taking  it  aa 
true.  It  was  enough  that  the  defendant  came  before  the  jury  for  trial 
for  this  crime,  already  guilty  of  several  other  crimes,  by  the  solemn 
and  deliberate  statement  of  this  high  and  impartial  officer  of  the  State 
and  of  the  court.  *  It  was  impossible  that  he  should  have  a  fair  and  im- 
partial trial  after  this." 

Also,  on  the  trial,  referring  to  a  witness  for  the  State  who  did  not 
respond  when  called,  the  prosecutor  remarked,  "Perhaps  somebody  has 
got  hold  of  him;"  and  upon  the  court  remarking  that  absence  of  the 
witness  did  not  suggest  "tampering,"  the  prosecutor  exclaimed,  "I  will 
prove  it  before  I  get  through."  He  did  not  even  attempt  to  prove  any 
"tampering"  with  the  witness.  This  was  oondemne.l  as  being  improper 
and  unfair  and  in  line  with  "his  preceding  unwarrantal)le  and  repre- 
hensible assault  upon  the  defendant's  previous  character."  Sasse  v. 
^tate,  68  Wis.  530. 

Theatrical  i)erformances  by  prosecutors. — Near  the  conclusion  of  the 
trial,  the  prosecuting  witness,  in  a  seduction  case,  was  recalled  to  the 
stand,  taking  her  child  with  her.  The  court  says:  "While  there,  upon 
ot)jectlon  being  made  to  her  having  the  child  with  her,  she  te.«tifled 
that  she  had  been  directed  by  one  of  the  State's  Attorneys  to  so  take  the 
child;  and  it  appears  that  this  was  done  solely  for  the  purpose  of  ex- 
hibiting the  child  to  the  jury,  and  of  exciting  prejudice  against  the 
defendant,  and  we  are  of  the  opinion  that  such  action  was  suflficient  to 
entitle  the  defendant  to  a  new  trial.    Reversed." 

Dunbar,  C.  J.,  in  a  separate  opinion  says:  "I  also  concur  in  the  last 
point  decided  by  Judge  Scott,  as  I  am  opposed  to  any  theatrical  mani- 
festations In  the  trial  of  a  cause,  especially  in  the  trial  of  a  criminal 
action."    State  v.  Carter,  8  Wash.  272,  36  Pac.  Rep.  29. 

Error  for  prosecutor  to  read  to  the  jury,  and  comment  thereon,  the 
affidavit  of  the  defendant  previously  made  for  a  continuance. — A  de- 
fendant, in  an  affidavit  for  continuance  at  a  prior  term,  gave  the  names 
of  several  absent  witnesses  and  what  he  expected  to  prove  by  them. 
These  witnesses  were  not  produced  at  the  trial,  and  the  district  attor- 


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AMERICAN  CRIMINAL  REPORTS. 


uey  was  allowed,  against  the  objection  of  the  defendant,  to  read  the  affi- 
davit and  fomment  thereon,  and  the  jury  took  it  with  them  to  their 
room,— it  never  having  been  admitted  or  offered  In  evidence.  The 
court  says:  "It  seems  this  was  clearly  error.  The  affidavit  was  no  part 
of  the  evidence  in  the  case,  and  should  not  have  been  referred  to  or 
used  as  such,  or  permitted  to  go  to  the  jury  without  first  having  been 
regularly  admitted,  if  competent,  as  evidence,  and  defendants  given 
an  opportunity  to  make  any  explanation  Ihey  may  have  desired  as  to 
the  absence  of  these  witnesses,  or  any  other  statement  in  the  affidavit. 
Hill's  Code,  pars.  204,  135*5;  McLeod  v.  Railway  Co.,  71  Iowa.  138,  32 
N.  W.  Rep.  246;  Alger  v.  Thompson,  1  Allen.  453;  State  v.  Lantz,  23 
Kan.  728.  But  counsel  for  the  State  insists  that  the  record  does  not 
disclose  that  the  comments  of  the  district  attorney,  or  the  consideration 
of  the  affidavit  by  the  jury,  produced  any  Improper  Influence  upon  tho 
jury  or  prejudiced  the  defendants  in  any  way.  A  copy  of  the  affidavit 
is  in  the  record,  from  which  it  is  apparent  that  an  Inference  may  have 
been,  and  perhaps  was,  drawn,  unfavorable  to  the  defendants,  because 
of  their  failure  or  neglect  to  secure  the  attendance  and  testimony  of 
the  witnesses  named  therein,  and  hence  we  cannot  say  the  error  was  a 
harmless  one.  The  cause  must  therefore  be  reversed,  and  a  new  trial 
ordered."    State  v.  Baker  et  al,  23  Oreg.  441,  32  Pac.  Rep.  161. 

Wronfj  to  urge  conviction  because  defendant  can  appeal. — In  his  clos- 
ing, the  district  attorney  told  the  jury  that  if  they  acquitted  the  de- 
fendant he  could  never  be  tried  again,  but  If  they  convicted  him.  "and 
in  doing  so  should  by  mistake  convict  an  innocent  man,  then  he  has  his 
right  of  appeal,  and  the  court  of  appeals  will  reverse  the  case  and  give 
the  defendant  a  new  trial,  and  no  injury  will  be  done." 

The  court  of  appeals  in  a  well  considered  opinion  analyzed  the  ques- 
tion and  said  that  such  argument  should  not  have  been  tolerated  for 
a  moment;  that  it  was  misleading  as  a  matter  of  fact;  that  it  was  an 
appeal  to  override  the  scruples  of  a  reasonable  doubt;  that  the  jury, 
although  not  convinced  beyond  a  reasonable  doubt,  might  nevertheless, 
in  their  desire  to  punish  for  a  heinous  crime,  conclude  that  it  was  best 
to  convict,  and  then  the  court  of  appeals  might  correct  the  evil  if  they 
thought  the  verdict  wrong;  and  so  the  defendant  would  not  be  in  dan- 
ger, if  innocent.  That  the  assumption  that  an  innocent  man's  convic- 
tion would  be  righted  on  appeal  was  fallacious;  for  the  appellate  court 
only  examines  the  statement  of  evidence  to  ascertain  if  the  guilt  of  the 
appellant  appears  with  reasonable  certainty;  and  if  so,  In  the  absence 
of  errors  of  law,  it  will  affirm  the  judgment;  the  question  with  the 
court  being,  not  whether  the  defendant  was  proven  guilty  beyond  all 
reasonable  doubt,  but  whether  the  evidence  justifies  the  action  of  the 
jury.  The  court  does  not  pass  upon  the  credibility  of  witnesses  and 
weight  of  evidence;  It  is  the  province  of  the  jury  to  do  that  If  there 
are  conflicting  theories  of  guilt  and  innocence,  the  court  will  not  re- 
verse, if  there  is  sufficient  evidence  to  support  the  verdict  and  make 
guilt  reasonably  certain,  even  though  the  court  might  not  be  free  from 
doubt  on  the  facts,  but  will  accept  the  verdict  as  conclusive  on  con- 
flicting theories.  The  opinion  is  expressed  that  there  are  hundreds  of 
convictions  of  innocent  persons  that  hA\e  been  affirmed  on  appeal. 
Crow  V.  State,  33  Tex.  Or.  Rep.  264. 


PEOPLE  n  SMITH. 


119 


In  Jlrazell  v.  State,  33  Tex.  Cr.  Rep.  333,  the  prosecutor  told  the  Jury 
that  defendant  could  appeal  but  the  State  could  not,  "and  who  knows 
the  house  that  will  be  next  entered  by  this  burglar,  and  the  murder 
that  might  be  committed."    Also  condemned. 

Tiilhiiig  to  the  jury  about  "boodle  proaecutlona,"  exceptions,  Supreme 
Court,  appeals,  etc. — The  State's  Attorney,  In  opening  his  case,  was  al- 
lowed to  talk  about  the  "boodle  prosecutions  In  New  York  city;"  to 
comment  upon  an  application  for  change  of  venue;  to  explain  the  na- 
ture of  exceptions  that  would  be  taken  by  the  defendants'  counsel;  that 
all  of  the  evidence  would  be  taken  by  stenographers;  that  on  appeal 
all  of  the  record  would  go  the  Supreme  Court,  and  If  It  should  appear 
to  the  "seven  wise  men  down  at  Ottawa"  that  the  judge  made  some  re- 
mark he  should  not  have,  they  would  consider  whether  or  not  a  new 
trial  should  be  granted;  that  errors  may  be  run  Into  the  record;  that 
the  defendants  had  a  right  to  testify,  etc.;  and  when  objection  was 
made  to  his  remarks  he  said,  "There  Is  another  exception.  The  court 
thinks  I  am  right,  or  he  would  tell  me  to  vary  my  line  of  argument." 
Other  extraneous  matters  were  dragged  In. 

The  court  held  that  the  jury  had  nothing  to  do  with  exceptions, 
changes  of  venue,  or  defendants'  right  to  testify;  and  in  referring  to 
the  statement  as  to  defendants'  right  of  appeal  to  the  Supreme  Court, 
tlie  court  quotes  from  State  v.  King,  04  Mo.  595,  wherein  It  was  said: 
"The  statements  that  the  higher  court  referred  to,  had  the  power  to 
review  the  finding  of  the  jury  on  the  weight  of  evidence,  was  calculated 
to  induce  the  jury  to  disregard  their  responsibility."  And  the  court 
asks  why  the  prosecutor  was  allowed  to  ridicule  the  laws  of  the  State, 
and  say,  "but  whatever  may  have  been  the  object,  the  effect  of  what  was 
done,  without  doubt,  created  a  prejudice  In  the  minds  of  the  jury,  and 
may  have,  in  part  at  least,  led  to  the  verdict  which  was  rendered." 

In  his  closing  argument  the  prosecutor  said:  "They  say  there  is  a 
fabled  tree  which  grows  in  some  torrid  clime;  that  the  birds  of  the 
air  which  fly  near  its  branches,  influenced  by  the  aroma  of  it,  fall  be- 
neath it  and  die.  That  Is  the  influence  of  M.  C.  McDonald  (not  a  de- 
fendant in  the  case  on  trial)  in  this  and  all  matters  connected  with 
the  administration  of  justice;"  and  similar  allusions. 

The  court  held  that  it  was  the  duty  of  the  trial  court  to  have  con- 
fined the  prosecutor  to  "a  consideration  of  such  matters  as  properly 
pertained  to  the  case,  under  the  evidence."  The  case  was  reversed. 
McDonald  v.  People,  126  111.  150. 

h'eferring  to  another  indictment. — Defendant  on  trial  for  abandon- 
ment, and  prosecutor  was  allowed  to  repeatedly  advise  the  jury  that  he 
had  been  before  Indicted  for  seduction,  and  that  the  case  on  trial  grew 
out  of  that.  The  court  of  appeals  said:  "Such  matter  had  nothing  to 
do  with  the  offense  here  charged,  was  foreign  to  the  issues  here  made, 
and  Its  introduction  only  tended  to  prejudice  the  jury."  State  v.  Oood, 
46  Mo.  App.  515. 

United  States'  district  attorney  tells  jury  that  defendant  is  guilty 
of  another  offense,  notwithstanding  acquittal,  etc. — Hall  was  tried  In  a 
federal  court  In  Arkansas,  for  killing  Yates.  It  seems  to  have  been 
conceded  that  the  defendant  had  gone  back  to  Mississippi  to  stand 
trial  for  killing  a  negro,  and  was  acquitted  of  that  charge.     In  his 


II 


i    : 


12(1 


AMERICAN  CRIMINAL  REPORTS. 


I!  Ill' 

A.  ' 


n 


closing  nrpitmont  to  the  jury,  the  (llstrict  oitorney  Raid:  "We  know 
what  kliul  of  trials  thoy  have  In  Mississippi  of  a  white  man  for  killing 
a  nt'Kro.  V.'e  know  from  reailing  the  newspapers  and  magazines  that 
such  trials  tlioro  are  farces.  We  are  not  living  In  Egyptian  darkness, 
but  in  the  light  of  the  nineteenth  lentury.  The  defendant  eanie  from 
MlsHissipi)l  with  his  hands  stained  with  the  blood  of  a  negro,  and  went. 
to  the  Iniiian  lonntry,  and  In  less  than  four  months  had  slain  another 
man,"  and  that  •'the  killing  of  a  negro  In  Mississippi,  for  which  thu 
defendant  had  been  tried  and  acquitted  there,  was  murder,"  etc.  The 
United  States  Supreme  Court  said  that  the  conduct  of  the  district  at- 
torney was  a  breach  of  professional  and  otflclal  duty  and  should  have 
been  promptly  rebuked.  That  whether  or  not  such  a  state  of  affairs 
prevailed  in  Mississippi  was  a  matter  of  personal  belief  and  opinion, 
rather  than  of  historical  fact,  caiable  of  being  used  for  illustration. 
That  If  such  a  state  of  affairs  were  admitted  to  exist,  it  would  not  war- 
rant the  conclusion  that  every  person  or  any  particular  person  Indicted 
there  for  such  offenses  was  guilty.  That  the  district  attorney  did  not 
even  confine  himself  to  methods  of  illustration,  but  drew  conclusions 
from  such  supposed  tacts  that  the  defendant  was  guilty  of  murder  In 
Mississippi.  That  if  the  defendant  had  been  convicted  there,  that  fact 
would  have  been  intompetent  to  support  the  charge  for  which  he  was 
being  tried.  That  "this  whole  branch  of  his  argument  was  evidently 
calculated  and  Intended  to  persuade  the  jury  that  the  defendant  had 
murdered  one  man  in  Mississiiypi.  and  should  therefore  be  convicted  of 
murderinq  another  man  in  Arl-ansns."  Judgment  reversed  on  this 
ground  alone.    Hull  v.  United  istatcs,  150  U.  S.  76. 

(^tatinu  defendant  to  be  of  dangerous  character. — One  of  the  prose- 
cuting attorneys  said  to  the  jury  In  his  argument,  "the  defendant  Is  a 
man  of  bad,  dangerous  and  de-perate  character,  but  I  am  not  afraid 
to  denounce  the  butcher  boy,  although  I  may,  on  returning  to  my  home, 
find  It  In  ashes  over  the  heads  of  my  defenseless  wife  and  children. ' 
The  Supreme  Court  held  that  this  statement  was  an  unwarrantable 
assumption  of  facts  as  to  the  character  of  the  prisoner,  coming  from 
counsel  of  high  standing,  not  under  oath,  and  incompetent  if  sworn 
to,  and  that  its  inevitable  tendency  was  to  prejudice  the  jury  against 
the  defendant.  That  it  was  the  right  of  defendant  to  be  tried  for  the 
Bpeclflc  offense  charged,  upon  competent  evidence  confined  to  that  issue, 
and  that  it  was  the  duty  of  the  trial  judge,  of  his  own  motion,  to  pre- 
vent such  breaches  of  the  privilege  of  counsel.  Martin  v.  State,  63  Miss. 
505. 

Vilifying  .the  defendant. — "In  his  address  to  the  jury,  the  county  at- 
torney used  the  following  language:  'This  defendant,  I.  L.  Stone,  is  a 
contemptible  and  pusillanimous  puppy.  H"  "omes  into  this  court  with 
the  swaggering  insolence  of  a  grocery  bully,  and  pleads  not  guilty  to 
this  charge.  During  the  dead  hours  of  the  night,  while  his  family 
were  at  their  humble  home  shedding  tears  of  regret  over  the  sad  down- 
fall of  the  husband  and  father,  this  man,  this  biped,  I.  L.  Stone,  is 
bedding  up  with  these  prostitutes.  Had  I  the  command  of  language  to 
stand  here  and  express  my  contempt  of  this  thing,  this  I.  L.  Stone,  I 
could  stand  until  the  dawn  of  resurrection  day,  and  then  say  less  than 


a 


PEOPLE  V.  SMITH. 


121 


ve  merits.  If  I  were  going  to  ostabllsh  a  hell  on  earth,  and  Invade  the 
iniB  of  darUuesa  for  one  to  Hupervlso  It,  I  would  leave  there,  and 
konic  l)aek  here  and  take  I.  L.  Stone,  for  he  is  a  fair  representative  of 
the   devil.' 

"Such  language  was  uncalled  for  and  highly  reprehensiljle.  It  was 
not  urgument,  not  a  dlR(  usslon  of  the  evidence.  It  was  a  piMBonal  and 
undignlfled  abuse  of  the  accused,  such  as  should  never  he  tolerated  in 
a  court  of  Justice.  It  was  calculated  to  arouse  the  passions  of  the  Jury 
against  the  defendant,  and  to  materially  prejudice  him  in  the  trial. 
It  was  such  error  in  (he  proceedings  as  would  of  itself  cause  a  reversal 
01'  the  judgment."    From  Stone  v.  State,  22  Tex.  Ct.  App.  185. 

Insinuations. — Williams,  a  Chinese  Inspector  at  San  Francisco,  was 
convicted  of  extortion  In  the  federal  court.  On  the  trial,  the  defend- 
ant's attorney  sought  to  Interrogate  the  collector  of  customs,  who  was 
a  witness  for  the  defense,  on  certain  matters,  and  being  asked  why,  he 
answered:  "It  has  been  sworn  to  by  Mr.  Tobln  that  Mr.  Williams  asked 
for  certain  cases  to  be  assigned  to  him  and  show  result.  We  pi  pose 
to  show  by  Mr.  Wise  that  ...  he  assigned  to  Williams  tlie  in- 
estigntion  of  Chinese  female  cases,  and  that  while  Williams  was  act- 
iig  in  that  behalf,  there  were  more  females  sent  back  to  China  than 
ever  were  sent  back  before  and  after."  The  prosecuting  attorney  ob- 
jected to  this  evidence  as  irrelevant,  saying,  "No  doubt,  fvory  Chinese 
woman  who  did  not  pay  Williams  was  sent  back."  Objection  was  made 
to  the  prosecutor's  remarks  but  overruled.  The  Supreme  Court  held 
that  the  remarks  were  highly  improper  to  be  made  in  presence  of  the 
Jury,  and  that  the  trial  court  erred  in  not  sustaining  the  defendant's 
objection.  Williams  v.  United  States,  168  U.  S.  382,  18  Sup.  Ct.  92 
(1897). 

Prosecutor  tells  of  a  7iote  he  received,  etc. — "The  defendant  was  such 
a  scoundrel  that  he  was  compelled  to  move  his  trial  from  Jones  county 
to  a  county  where  he  was  not  known."  And,  "The  bold,  brazen-faced 
rascal  had  the  impudence  to  write  me  a  note  yesterday,  begging  me  not 
to  prosecute  him,  and  threatening  me  if  I  did,  he  would  get  the  legisla- 
ture to  impeach  me."  These  were  remarks  to  a  jury  by  the  prosecuting 
attorney,  and  were  condemned  by  the  Supreme  Court  as  being  prejudi- 
cial to  the  defendant  and  not  founded  on  any  evidence  before  them. 
As  to  the  change  of  venue,  the  jury  could  not  inquire  Into  the  reasons 
and  motives  therefor;  and  such  a  course  would  defeat  the  object  of  the 
law  itself;  for,  changing  to  avoid  prejudice  in  one  county,  the  prose- 
cutor could  thus  resurrect  the  prejudice  in  the  county  to  which  the 
change  was  taken.  If  there  was  such  a  note  to  the  prosecutor,  it  was 
in  no  way  connected  with  the  issue  on  trial,  and  "constituted  a  new 
and   distinct  offense." 

The  court  indorsed  the  doctrine  that  it  was  the  duty  of  the  trial  Judge 
to  stop  counsel  when  grossly  abusing  his  privilege  "there  and  then," 
and  that  when  he  fails  to  do  so  it  is  ground  for  a  new  trial.  The  court 
concluded:  "The  defendant  was  arraigned  at  the  bar  of  the  court,  mute 
and  helpless,  without  raising  an  unseemly  controversy  with  the  so- 
licitor. The  court  is  his  constituted  shield  against  all  vituperation  and 
abuse,  and  more  especially  when  it  is  predicated  upon  alleged  facts 


122 


AMERICAN  CRIMINAL  REPORT& 


l|^^; 

111 

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not  in  evidence,  or  admissible  In  evidence."    State  v.  Smith,  75  N.  C. 
306. 

Like  the  upas  <>ee.— "That  no  man  who  had  lived  in  the  defendant's 
neighborhood  could  have  anything  but  a  bad  character;  that  defend- 
ant polluted  everything  near  him,  or  that  he  touched;  that  he  was 
like  the  upas  tree,  shedding  pestilence  and  corruption  all  around  him." 
These  words  were  used  by  plaintiff's  attorney  in  a  civil  case  and  were 
objected  to  because  defendant's  character  had  not  been  impeached,  etc. 
The  Supreme  Court  said  there  was  nothing  in  the  record  to  justify 
such  an  "unprovoked  and  wanton  assault,"  the  object  of  which  was  ta 
humiliate  and  degrade  the  defendant,  and  prejudice  him  before  the 
jury,  and  reversed  the  case  on  this  ground.  Coble  v.  Coble,  79  N.  C. 
589. 

Error  for  prosecutor  in  his  argument  to  turn  toward  the  defendant 
and  iiiferentiaUy  call  upon  him  for  an  explanation  of  ichere  he  was,  on 
certain  dates,  connected  icith  the  charge  against  him. — From  opinion: 
"In  the  opening  argument,  counsel  for  the  State  said:  'We  have  proved 
where  the  defendant  was  on  the  29th,  30th,  and  31st  of  January,  1893, 
and  on  the  1st,  2d,  3d  and  4th  of  February,  1893,  and  we  have  shown  by 
the  witness  Forrester  that  the  defendant  was  present  and  committed 
this  burglary;'  and  then,  facing  the  defendant,  said:  'Now,  where  does 
he  say  he  was,  if  he  was  not  there?'  On  objection  being  made,  the 
court  admonished  the  counsel  not  to  refer  to  that,  and  told  the  jury 
not  to  consider  it.  It  seems  from  this  that  the  trial  judge  understood 
the  counsel  to  be  referring  to  the  fact  that  the  defendant  had  the  op- 
portunity to  testify  with  regard  to  this  matter,  and  had  not  availed 
himself  of  the  privilege.  We  think  the  remark  bears  this  construction, 
and  under  repeated  decisions  the  allusion  is  cause  for  reversal;  and  the 
fact  that  the  court  rebuked  them,  and  withdrew  them  from  the  con- 
sideration of  the  jury,  does  not  cure  the  vice."  Brazell  v.  State,  33  Tex. 
Cr.  Rep  333,  26  S.  W.  Rep.  723. 

Uuuarranted  insinuations  of  bribery  against  tcitness. — One  of  the 
prosecuting  attorneys,  in  the  closing  to  the  jury,  said:  "I  tell  you, 
gentlemen,  money  talks.  Oliver  Helm,  Amanda  Helm  and  Ed.  Short 
were  witnesses  before  the  grand  jury  and  at  the  coroner's  inquest. 
They  were  then  witnesses  for  the  State.  Now  they  are  witnesses  for 
the  defendant.  We  have  been  prepared  for  this  thing.  We  knew  some- 
one had  been  to  Ottumwa  and  Bonaparte,  and  were  prepared  for  the 
evidence  from  there." 

The  Supreme  Court  held  that  the  remarks  inferred  that  the  witnesses 
had  been  bribed,  and  were  wholly  outside  of  the  case,  there  being  noth- 
ing in  the  record  to  justify  any  such  assumption.  These  witnesses 
were  not  called  by  the  State,  but  no  explanation  was  made,  and  no  con- 
flict between  their  testimony  on  the  trial  and  elsewhere  was  In  any 
way  shown;  and  the  tendency  of  these  unauthorized  declarat'ons  was 
to  Impair  their  credibility,    ^tate  r.  Helm.  92  Iowa,  540. 

Abusing  defendant:  defying  court  of  app'r^fi  and  defendant's  counsel, 
and  general  ran*.— The  court  of  appeals  had  granted  a  new  trial,  and 
on  retrial  one  of  the  prosecuting  attorneys,  in  summing  up,  told  the 
jury  the  defendant  was  guilty,  and,  on  exceptions  being  taken,  said. 


PEOPLE  V.  SMITH. 


123 


"Ye3,  take  your  bill,  and  as  often  as  this  case  is  taken  to  the  court  of 
appeals  and  reversed  on  some  foolishness  or  technicality,  I  will,  as 
often  on  a  new  trial,  as  I  can  get  the  case  before  twelve  honest  men, 
convict  him  (defendant)  again  and  again,"  and  repeated  this  language 
with  additions.  And  on  exceptions  to  his  remarks  being  allowed,  and 
being  admonished  by  the  court  to  confine  himself  to  the  evidence,  he 
continued  his  remarks,  and  referring  to  other  similar  indictments  he 
was  going  to  try,  said,  "and  when  they,  as  has  this  defendant,  been 
once  fairly  convicted  by  twelve  honest  men,  and  by  a  dodge  and  tech- 
nicality had  the  case  reversed,  and  now  represented  by  able  counsel 
watching  for  an  error,  I  will  teach  them  to  throw  themselves  upon  the 
mercy  of  the  jury  and  the  court,"  and  more  in  this  strain.  The  court 
held  that  reference  to  a  former  verdict  against  the  defendant  was 
against  the  letter  and  reason  of  the  law;  and  read  a  lecture  to  prose- 
cutors who  by  their  intemperate  zeal  themselves  cause  their  cases  to 
be  reversed.  The  remarks  were  characterized  as  vituperative  and 
reprehensible.  And  the  court  held  that  the  judgment  must  be  reversed 
"because  of  the  character  and  course  of  argument  indulged  in"  by  the 
prosecutor."    Hatch  v.  State,  8  Tex.  Ct.  App.  416. 

Wroiifi  to  state  that  claiming  a  legal  privilege  is  evidence  of  guilt. — 
The  case  of  Oossett  v.  State,  G5  Ark.  389,  46  S.  W.  Rep.  537  (1898),  is 
pertinent  not  only  on  improper  argument  of  the  prosecutor,  but  also  on 
the  question  of  inferring  guilt  from  refusal  of  defendant  to  explain 
evidence  apparently  against  him.  Convicted  of  stealing  two  barrels  of 
whiskey,  etc.,  from  a  car.  He  denied  knowledge  of  the  theft,  but  ad- 
mitted that  about  the  time  thereof  he  had  two  gallons  of  whiskey.  He 
refused  to  answer  where  he  got  it,  because  he  was  under  indictment 
In  the  federal  court  for  illicit  distilling,  anl  his  answer  might  tend 
to  incriminate  him  on  that  charge.  The  trial  j'utge  held  that  he  need 
not  answer.  The  prosecutor  argued  to  the  jury  that  defendant's  refusal 
to  &«:i;!ain  his  possession  of  the  whiskey  was  evidence  of  guilt.  The 
Supreme  Court  said  that  his  refusal  to  answer  because  his  answer 
might  tend  to  convict  him  of  another  offense  was  no  evidence  of  guilt 
in  this  case;  and  that  the  jury  had  no  right  to  draw  a  conclusion  of 
guilt  from  his  refusal  to  answer  a  privileged  question,  although  such 
course  might  affect  his  credibility;  and  that  the  argument  of  the 
prosecutor  was  improper  and  the  ruling  of  the  court  below  permitting 
him  to  so  argue  was  erroneous,  and  reversed  the  case. 

"Good  lime"  argument,  to  increase  penalty. — "Counsel  for  the  People, 
in  his  argument  to  the  jury,  called  attention  to  what  is  generally 
linown  as  the  "good  time"  statute,  and  insisted  that  it  should  be  taken 
into  consideration  in  fixing  tlie  defendants'  terms  of  imprisonment,  if 
they  were  found  guilty.  To  this  defendants'  counsel  interposed  an  ob- 
jection, but  it  was  overruled  and  an  exception  taken.  This  was  error. 
That  statute  has  no  application  whatever  to  criminal  trials.  It  relates 
purely  to  prison  government  and  discipline.  Whether  a  convict  shall 
receive  a  reduction  of  time  for  good  conduct  during  his  imprisonment 
is  a  question  between  him  and  the  prison  ofllcials.  To  permit  a  jury  to 
be  in  any  way  influenced  by  it,  in  fixing  a  prisoner's  punishment,  would 
tend  to  defeat  its  object."    From  Farrell  v.  The  People,  133  111.  244. 


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124 


AMERICAN  CRIMINAL  REPORTS. 


Frequency  of  "burnings,"  Krped.— Defendant  on  trial  for  arson,  and 
prosecute  in  his  closing  argument  alluded  to  the  frequency  of  burnings 
throughout  the  country,  and  urged  upon  the  jury  the  Importance  of 
strictly  enforcing  the  law  in  this  case.  The  court  held  that  this  was 
extraneous  matter.  That  the  fact  was  not  one  of  such  public  notoriety 
or  matter  of  history  as  that  the  court  or  jury  could  talte  judicial  cog- 
nizance of  it.  That  counsel  can  only  state  facts  of  which  there  is  no 
evidence  when  they  are  of  such  character  as  to  be  noticed  judicially 
without  proof;  and  that  the  remarks  were  intended  to  prejudice  the 
defendant.    Washington  v.  State,  87  Ga.  12. 

Murders,  mohs,  vigilance  committees,  etc. — It  was  held  to  be  error 
for  the  prosecutor  to  refer  to  the  frequency  of  such  things  in  the  com- 
munity and  to  state  that  they  are  caused  by  a  lax  administration  of 
the  law,  and  urge  the  jury  to  make  an  example  of  the  defendant. 
Ferguson  v.  State,  49  Ind.  33. 

Lugging  in  alleged  action  of  another  judge  against  defendant  and 
artistic  epithets.— Con\icted  of  bigamy.  In  his  closing  argument  to 
the  jury,  the  prosecutor  repeated  remarks  attributed  to  Judge  Gibson 
on  a  hearing  for  alimony  in  another  court,  and  said  that  Judge  Gibson 
had  ordered  defendant  into  custody  and  was  at  the  bottom  of  this 
prosecution,  etc.,  there  being  no  evidence  touching  such  matters. 
Prosecutor  also  called  defendant  "a  sugar-loafed,  squirrel-headed  Dutch- 
man;" all  of  which  was  censured  by  the  Supreme  Court  as  reversible 
error.    State  v.  Vlrich,  110  Mo.  350,  19  S.  \V.  Rep.  656. 

Had  time  to  prove  good  character. — The  prosecuting  attorney  so  In- 
formed the  jury,  and  reasoned  therefrom,  that,  because  the  defendant 
had  not  seen  fit  to  avail  himself  of  the  benefits  of  his  glorious  privilege, 
he  was  unable  to  produce  one. 

From  the  unceremonious  manner  in  which  the  Supreme  Court  re- 
versed the  judgment,  one  would  infer  that  it  did  not  share  the  prose- 
cutor's opinion,  that  time  was  of  the  essence  of  a  defendant's  good 
character.     Thompson  v.  State,  92  Ga.  448. 

hi  examination  of  defendant. — Improper  for  prosecutor,  when  ex- 
amining defendant  and  asking  him  about  an  old  alleged  assault  upon 
a  party  not  ccuinected  with  the  case,  to  say  to  him  in  hearing  of  the 
jury,  "You  never  beat  him  up  but  once,  and  that  was  enough  to  nearly 
kill  him."    Morrison  v.  State,  44  S.  W.  Rep.  511. 

A  personal  acquaintance  of  the  prosecutor. — It  is  a  palpable  abuse 
of  privilege  for  the  prosecutor  to  argue  to  the  jury  (the  defendant  being 
tried  for  selling  liquor  to  an  intoxicated  person)  that  he  knew  person- 
ally the  defendant,  and  that  he  was  guilty  of  this,  and  he  was  sure 
of  other  crimes.    Brow  v.  State,  103  Ind.  133. 


CARTER  V.  STATE.  125 


Carter  v.  State. 

106  Ga.  372—32  S.  E.  Rep.  345. 

Decided  February  2,  1899. 

Arson:    Indictment — "House" — Instructions  —  Evidence — Accomplice — 

Jury — Qualifications. 

1.  It  is  not  brisential  that  an  indictment  for  arson,  charging  the  burn- 

ing of  an  "outhotise,"  should  allege  whether  or  not  the  same  was 
located  in  a  city,  town,  or  village. 

2.  A  freight-car  body,  which  has  been  detached  from  the  wheels,  and 

placed  upon  permanent  posts  near  a  railway  track  at  a  station, 
and  to  which  a  platform  has  been  attached,  thus  constituting  a 
structure  to  be  used  as  "a  freight  warehouse,"  and  which  is  used 
for  this  purpose  only,  is  a  "house"  within  the  meaning  of  section 
136  of  the  Penal  Code. 

3.  Such  a  house,  located  elsewhere  than  in  a  city,  town,  or  village, 

may  be  characterized  as  an  "outhouse,"  though  not  appurtenant 
to  any  other  building. 

4.  When  the  principle  embraced  in  a  request  to  charge  is  so  fully  cov- 

ered by  the  general  instructions  given  to  the  jury  that  they  could 
not  possibly  be  mistaken  as  to  the  true  law  of  the  point  in  ques- 
tion, refusing  to  give  such  a  request  is  not  cause  for  a  new  trial. 

5.  According  to  the  rule  laid  down  by  this  court  in  Byrd  v.  State,  6S 

Ga.  CGI,  the  acts  and  declarations  of  one  accomplice,  done  and 
made  during  the  pendency  of  a  common  purpose  and  effort  to  con- 
ceal a  crime  already  perpetrated,  are  admissible  against  another 
accomplice. 

6.  A  new  trial  will  not  be  granted  because  of  a  refusal  by  the  court 

to  inquire  whether  or  not  any  of  the  panel  of  jurors  were  dis- 
qualified by  relationship,  when  it  is  not  shown  that  in  point  of 
fact  a  Juror  thus  disqualified  was  placed  upon  the  panel. 

7.  The  discretion  of  the  trial  judge  in  determining,  upon  conflicting 

evidence,  whether  or  not  a  juro/  was  impartial,  will  not,  unless 
abused,  be  interfered  with  by  this  court. 
(Syllabus  by  the  Court.) 


I* 
I'ft 


jW- 


Appeal  from  Wayne  County  Superior  Court;  J.  L.  Sweat, 
Judge. 

11.  13.  Carter  was  convicted  of  arson.    Judgment  affirmed. 

John  W.  Bennett,  Solicitor  General,  Goodyear  <C  Kay,  and 
D.  M.  ClarJc,  for  the  State. 

Thos.  E.  Watson,  Brantley  &  Bennett,  ind  E.  D.  GraJiam,  for 
plaintiff  in  error. 


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120 


AMERICAN  CRIMINAL  REPORTS. 


LuMPKTX,  P.  J.  Upon  an  indictment  against  II.  B.  Carter, 
D.  II.  :Moo(ly,  F.  Ilerrington,  and  Jim  :Moody,  charging  them 
Avith  the  crime  of  arson,  Carter  was  separately  tried  and  con- 
victed. His  bill  of  exceptions  alleges  error  in  overruling  a  de- 
murrer to  the  indictment,  and  in  refusing  to  sustain  a  motion 
for  a  new  trial.  We  will  undertake  a  brief  discussion  of  the 
material  raestions  thus  presented. 

1.  The  indictment  charged  the  wilful  and  malicious  burning 
of  "a  certain  freight  warehouse,"  the  property  of  the  Southern 
Railway  Company,  ''the  same  being  then  and  there  an  out- 
house." The  point  made  by  the  demurrer  was  that  the  indict- 
ment failed  to  allege  whether  or  not  the  house  alleged  to  have 
been  burned  was  in  a  city,  town,  or  village.  The  decision  of  this 
court  in  Smith  v.  Slate,  04  Ga.  005,  practically  settles  this  ques- 
tion. It  was  there  held  that :  "Whether  the  outhouse  burnt  be 
in  a  city,  town,  or  village,  or  not,  does  not  aifect  the  legal  char- 
acter of  the  offense.  It  affects  the  punishment  only."  Accord- 
ingly, a  niling  of  the  trial  court  refusing  to  exclude  testimony 
on  the  ground  that  the  indictment  failed  to  allege  that  the  out- 
house was  not  in  a  city,  town,  or  village  was  sustained. 

2.  The  next  question  for  determination  is  whether  or  not  the 
structure  burned  was  a  "house,"  within  the  meaning  of  section 
136  of  the  Penal  Code,  defining  the  offense  of  arson.  The  evi- 
dence shows  that  the  body  of  a  freight  car  had  been  taken  off 
the  wheels,  and  placed  near  the  railway  track  at  a  station,  that  it 
was  supported  upon  permanent  posts,  and  that  a  platform,  to  be 
used  in  transferring  freights  to  and  from  the  car  body,  had  been 
attached  to  the  same.  It  further  appeared  that  the  structure 
thus  located  was  used  as  "a  freight  warehouse"  by  the  railway 
company,  in  precisely  the  same  manner  as  if  it  had  been  an 
ordinary  warehouse  built  for  this  identical  purpose.  In  view  of 
these  facts,  we  have  no  difficulty  in  holding  that  the  structure 
in  question  was  a  "house,"  and  accordingly  we  approve  the  in- 
struction to  this  effect  given  by  the  trial  judge  to  the  jury.  That 
the  structiire  with  which  we  are  now  dealing  was  not  in  shape 
like  an  ordinary  house,  or  that  a  portion  of  the  same  had  been 
formerly  used  as  a  movable  car,  does  not  prevent  it  from  being, 
within  legal  contemplation,  a  house.  It  was  certainly  no  longer 
a  car;  and  having  all  the  elements  of  permanency,  and  being 


tidap 
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the  1 
tion, 
3. 
this 
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CARTER  V,  STATE. 


127 


adaptofl  to  the  uses  for  which  a  warehouse  is  suitable,  we  sec  no 
reason  why  it  should  not  be  treated  as  a  struetitre  coming  within 
the  protection  of  the  statute  above  cited.  See,  in  this  connec- 
tion, Williams  v.  State  (this  term),  32  S.  E.  Rep.  129. 

3.  As  will  have  been  observed,  the  indictment  alleged  that 
this  structure  was  an  "outhouse."  There  was  no  evidence  show- 
ing that  the  Southern  Railway  Company  had  or  owned  any  other 
building  at  this  station;  and  counsel  for  the  accused  thereupon 
insisted  that  the  house  in  question  could  not,  in  legal  contempla- 
tion, be  an  "outhouse,"  and,  accordingly,  that  there  was  a  fatal 
variance  between  the  allegations  of  the  indictment  and  the  proof. 
It  is  true  that  the  word  "outhouse"  primarily  means  a  building 
adjacent  to  a  dwelling-house,  and  subservient  thereto,  but  dis- 
tinct from  the  mansion  itself.  See  2  Bouv.  Law  Diet.  341; 
IJlack,  Law  Diet.  859 ;  And.  Law  Diet.  515.  After  careful  con- 
sideration, however,  we  have  reached  the  conclusion  that  the 
word  "outhouse,"  as  used  in  sections  136,  141,  and  142  of  our 
Penal  Code,  as  applied  to  a  structure  not  located  within  a  city, 
town,  or  village,  is  intended  to  embrace  a  house  of  any  descrip- 
tion which  is  not  a  dwelling-house.  In  Watt  v.  State,  61  Ga.  66, 
this  court  held  that  the  wilful  and  malicious  bui'ning  of  a  coun- 
try church  was  indictable  under  section  4379  of  the  then  exist- 
ing Code,  which  is  the  same  as  section  141  of  the  present  Penal 
Code.  The  status  of  a  railway  wai'ehouse,  located  elsewhere 
than  in  a  city,  town,  or  village,  cannot  be  legally  ditferent  from 
that  of  a  coimtry  church  similarly  situated.  That  all  houses 
other  than  dwelling-houses,  thus  located,  were  intended  to  be  re- 
garded as  "outhouses,"  seems  manifest  from  the  provisions  of 
section  142  of  the  Penal  Code,  which  declares  that  "setting  fire 
to  an  outhouse  of  another,  as  describe  1  in  the  preceding  section, 
shall  be  punished,"  etc. ;  for,  unless  this  meaning  be  given  to 
the  word  "outhouse"  as  used  in  section  142,  we  would  have  no 
penalty  whatever  for  the  offense  of  setting  fire  to  a  house  of  the 
kind  described  in  the  present  indictment  The  truth  is,  the 
prefix  "out"  was  totally  unnecessary  in  this  connection,  except 
for  the  exclusive  purpose  of  distinguishing  dwelling-houses  from 
other  houses ;  but  the  use  thereof  should  not,  we  think,  be  given 
the  effect  of  defeating  the  legislative  will,  which  clearly  was  to 
include  buildings  other  than  those  which  would  ordinarily  be 


rt  J- 


■■i 


128 


AMERICAN  CRIMINAL  REPORTS. 


understood  as  falling  witliiu  tlio  class  designated  by  the  word 
''outhouse." 

4.  All  of  the  persons  named  in  the  indictment  were  accused 
as  principals.  The  court  was  requested  to  charge  that  if  Carter, 
vho  was  then  on  trial,  was  guilty  either  as  an  accessory  before 
the  fact  or  as  an  accessory  after  the  fact,  he  could  not  lawfully 
be  convicted  under  this  indictment.  The  court  refused  to  in- 
struct the  jury  in  the  precise  lang-uage  of  the  requests  presented, 
hut  did  charge  the  jury  repeatedly,  distinctly,  and  unequiv- 
ocally, that  the  accused  could  not  be  convicted  unless  they  were 
sati^ticd  beyond  a  reasonable  doubt  that  he  was  present  at  the 
time  the  arson  was  committed,  and  actually  participated  in  its 
perpetration.  A  mind  of  even  ordinary  comprehension  could 
not  have  failed  to  understand,  from  the  plain  and  explicit  lan- 
guage used  by  the  judge,  that  no'\-erdict  of  guilty  could  projierly 
be  returned  against  the  accused  unless  the  evidence  showed  his 
guilt  as  a  principal.  The  jury  must  have  known,  from  the  in- 
structions given  them,  that  no  matter  how  intimate  a  connection 
with  crime  Carter  may  have  had,  either  before  or  after  its  com- 
mission, he  could  not  be  lawfully  convicted  of  the  charge  brought 
against  him  unless  he  was  present  and  actually  participated  in 
the  burning  of  the  house.  This  being  so,  and  the  evidence  tend- 
ing to  show  his  guilt  as  a  principal  being  very  strong,  we  do  not 
feel  constrained  to  order  a  new  trial  because  of  the  court's  re- 
fusal to  give  the  requests  above  mentioned,  although  we  do  not 
hesitate  to  say  it  would  have  been  the  better  practice  so  to  do. 

5.  The  court  admitted,  over  objection  of  the  accused,  evidence 
of  certain  acts  on  the  part  of  D.  II.  'bloody,  and  declarations 
immediately  accompanying  the  same,  and  also  a  letter  written 
by  him  to  Herrington,  all  tending  to  show  a  guilty  connection 
on  ^[oody's  part  with  the  crime  charged  in  the  indictment,  and 
also  to  some  extent  implicating  Carter  as  a  participant  therein. 
These  acts  were  done  and  these  declarations  were  made  some 
time  after  the  arson  had  been  committed,  and  the  letter  was 
written  at  a  still  later  period ;  but  there  was,  independently  of 
the  conduct  and  sayings  of  ]\[oody  with  which  we  are  now  deal- 
ing, and  of  anything  contained  in  his  letter  to  Herrington,  much 
evidence  tending  to  show  there  was  a  conspiracy  to  ste.d  goods 
from  the  warehouse  and  burn  the  building,  and  also  to  establish 


CARTER  V.  STATE. 


129 


the  State's  contention  that  Carter  Avaa  actively  concerned,  not 
only  in  the  theft  and  arson,  but  also  in  a  common  intent  and 
jDurpose  on  the  part  of  the  conspirators  to  eflfectuate  a  conceal- 
ment of  these  crimes,  and  shield  each  other  from  detection  and 
punishment.  In  other  words,  there  Avas,  outside  of  the  evidence 
objected  to,  proof  authorizing  the  conclusion  that  the  alleged 
conspiracy  embraced  a  "criminal  enterprise,"  the  scope  of 
which  included  larceny,  arson,  and  concealment.  There  was 
also  some  evidence  warranting  the  inference  that  this  enterprise 
was  still  pending  on  the  occasions  to  which  the  evidence  com- 
plained of  as  illegal  related.  It  seems,  therefore,  under  the  de- 
cision of  this  court  in  Bijrd  v.  State,  68  Ga.  601,  that  this  evi- 
dence was  admissible  against  Carter.  In  that  ease  it  was  dis- 
tinctly ruled  that  the  acts  and  conduct  of  one  accomplice  during 
the  pendency  of  the  Avrongful  act,  not  alone  in  its  actual  per- 
l)otration,  but  also  in  its  subsequent  concealment,  were  admis- 
sible against  another  accomplice.  This  holding  was  doubtless 
based  upon  the  idea  that  the  criminal  enterprise  was  still  pend- 
ing while  the  conspirators  continued  to  be  active  in  taking  meas- 
ures to  prevent  the  discovciy  of  the  crime,  or  the  identity  of 
those  connected  with  its  perpetration. 

6.  One  ground  of  the  motion  for  a  new  trial  complains  that 
the  judge  erred  in  refusing  to  inquire  whether  or  not  any  of  the 
panel  of  jurors  put  upon  the  accused  were  stockholders  in  the 
Southern  Kail  way  Company,  or  were  related  to  such  stockhold- 
ers. As  it  was  not  made  to  appear  that  any  juror  having  such  a 
disqualification  was  in  fact  upon  the  panel,  this  ground  is  obvi- 
ously without  merit. 

7i  The  only  remaining  ground  of  the  motion  for  a  new  trial 
which  need  be  noticed  is  one  alleging  partiality  on  the  part  of  a 
juror.  This  ground  was  supported  by  evidence  going  to  show 
that  prior  to  the  trial  the  juror  in  question  had  used  expressions 
indicating  prejudice  against  the  accused.  By  way  of  counter 
showing,  however,  the  juror  made  an  affidavit  positively  deny- 
ing the  use  of  the  language  imputed  to  him,  and  was  in  this  re- 
spect corroborated  by  other  evidence.  It  therefore  simply  ap- 
pears that,  upon  a  conflict  of  testimony  which  would  have  war- 
ranted a  finding  either  way,  the  judge  held  that  the  juror  was 

not  incompetent  to  try  the  accused,  and  certainly  there  was  ro 
VouXI— 9 


M 


i 

M 


H*  I,' 


130 


AMERICAN  CRIMINAL  REPORTS. 


li  !4 '^^ 

I- 

P -s  ■ 

I- 

ft 


abuse  of  discretion  in  so  doing.    Judgment  affirmed.     All  the 
justices  concurring. 

Note  (by  H.  C.  G.). — It  may  well  be  doubted  whether  the  conclusions 
reached  by  this  very  able  court  in  the  fifth  paragraph  of  its  opinion 
would  be  sustained  by  the  weight  of  autbority  of  other  appellate  courts. 

The  sixth  paragraph,  however,  is  suggestive  of  hasty  consideration, 
and  oversight  of  important  considerations.  It  was  very  material  to 
ascertain  whether  any  of  the  jurors  were  stockholders  in  the  Southern 
Railway  Company  whose  property  it  was  alleged  was  burned,  or 
whether  they  were  interested  In  the  company,  or  were  related  to  per 
sons  who  were.  The  trial  judge  erred  grossly  in  denying  such  examina 
tion  of  the  jurors,  and  the  Supreme  Court  erred  in  affirming  his  ruling, 
on  the  ground  that  it  was  not  affirmatively  shown  that  any  juror  so 
disqualified,  in  fact,  was  on  the  panel.  How  were  such  facts  to  be  as 
certained,  if  not  by  examining  the  jurors  themselves?  Who  could  dis 
close  such  facts  so  well  as  they?  There  might  be  no  other  way  of 
ascertaining  whether  they  had  stocks  or  bonds  locked  up  In  their 
trunks,  or  deposited  in  New  York;  or  whether  their  wives,  parents  or 
children  had;  or  whether  they  had  relatives  holding  positions  in  the 
company.  Further,  the  only  time  they  could  be  legally  questioned  or 
compelled  to  answer  such  questions  was  while  being  examined  as  to 
their  qualifications  as  jurors;  and  when  inquiry  into  such  facts  was 
then  denied,  how  could  it  afterward  be  opened  up  to  ascertain  whether 
In  fact  jurors  with  such  disqualifications  had  been  accepted?  The 
court  puts  itself  in  the  illogical  and  arbitrary  position  of  a  master, 
who  would  forcibly  prevent  his  servant  from  pursuing  a  runaway  cow, 
and  then  afterwards  condemn  and  punish  him  for  not  catching  the  cow. 


State  v.  Wiiitmore. 

147  Mo.  78—47  S.  W.  Rep.  1038. 

Decided  November  21,  1898. 

AnsoN  IN  First  Degree:  Indictment — Jail — Dwelling-house. 

1.  Under  Revised  Statutes  1889,  section  3511,  providing  that  the  burn- 

ing of  "any  dwelling  in  which  there  shall  be  at  the  time  some 
human  being"  is  arson  in  the  first  degree,  and  section  3512,  pro- 
viding that  "every  house,  prison,  jail,"  etc.,  shall  be  deemed  a 
dwelling-house,  an  indictment  for  arson  in  the  first  degree,  charg- 
ing defendant  with  burning  a  jail,  which  fails  to  allege  that  it  is 
a  dwelling-house,  is  fatally  defective. 

2.  Under  Revised  Statutes  1899,  section  3512,  providing  that  a  Jail 

which  is  occupied  shall  be  deemed  a  dwelling-house  of  any  person 
having  charge  thereof,  or  so  lodged  therein,  within  the  meaning 


STATE  V.  WHITMORE 


131 


of  the  statute  defining  arson,  an  Indictment  for  burning  a  Jail 
must  allege  its  ownership. 

3.  When  it  was  in  charge  of  the  sheriff,  who  resided  in  the  upper  story 

of  it,  such  ownership  should  be  laid  in  him. 

4.  Where  defendant  was  convicted  of  arson  in  the  first  degree,  and 

the  indictment  proves  defective,  the  State  cannot  treat  matters 
of  description,  which  are  necessary  only  under  the  statute  defin- 
ing arson  in  the  first  degree,  as  immaterial  and  surplusage,  and 
thus  bring  it  within  the  provisions  of  the  statute  defining  arson 
in  the  third  degree. 

Appeal  from  Grundy  Circuit  Court;  Hon.  P.  C.  Stepp, 
Judge.    Reversed  and  defendant  discharged. 

Edward  C.  Crow,  Attorney-General,  and  Sam  B.  Jeffries, 
Assistant  Attorney-General,  for  the  State. 
Ilarber  &  Knight,  for  the  appellant. 

SuEuwoon,  J.  Arson  the  charge,  ten  years'  imprisonment  in 
the  penitentiary  the  punishment,  and  the  indictment  as  follows: 
"The  grand  jurors  for  the  State  of  JVIissouri,  and  from  the  body 
of  Grundy  county,  duly  impaneled,  charged  and  sworn  upon 

their  oaths,  present  and  charge  that  on  the day  of , 

1897,  at  Grundy  county,  Missouri,  one  Eugene  Whitmore,  being 
then  and  there  a  prisoner  confined  in  the  county  jail  of  Grundy 
county,  Missouri,  then  and  there  situate,  the  said  county  jail 
being  then  and  there  the  prison  of  the  said  Grundy  county,  Mis- 
souri, wherein  the  prisoners  convicted  of  misdemeanors  were 
then  and  there  usually  confined  and  lodged;  and  wherein  also 
certain  human  beings,  officers,  servants  and  employees  of  said 
county  in  charge  of  and  employed  in  said  coimty  jail,  then  and 
there  did  usually  lodge,  he,  the  said  Eugene  A\liitmore,  did  then 
and  there  feloniously,  wilfully  and  maliciously  set  fire  to  the 
county  jail,  aforesaid,  and  the  said  county. jail  then  and  there 
wilfully,  feloniously  and  maliciously  did  burn,  in  which  said 
county  jail  were  then  and  there  divers  human  beings,  who 
usually  lodged  therein,  against  the  peace  and  dignity  of  the 
State." 

The  sufficiency  of  this  indictment  having  been  challenged,  it 
is  in  order  to  determine  that  point. 

Sections  3511  and  3512,  Revised  Statutes  1889,  relating  to 
the  crime  of  arson  are  these : 


'%\ 


182 


AMERICAN  CRIMINAL  REPORTS. 


..t;  ■  ■ 


Section  3511.  "Arson  in  first  degree.  Every  person  who 
Blmll  wilfully  set  fire  to  or  burn  any  dwelling-house  in  which 
there  shall  be  at  the  time  some  Immnn  being,  or  who  sliall  wil- 
fully set  fire  to  or  burn  any  boat  or  vessel  in  which  there  shall 
be  at  the  time  some  human  being,  or  who  shall  wilfully  set  firo 
to  or  burn  any  bridge  or  causeway  upon  any  railroad,  shall 
upon  conviction  be  adjudged  guilty  of  arson  in  the  first  dogTcc." 

Section  3512.  "DweVhuj-hoiise  defined.  Eveiy  house,  prison, 
jail  or  other  edifice,  which  shall  have  been  usually  occupied  by 
persons  lodging  therein,  shall  be  deemed  a  dwelling-house  of 
any  person  having  charge  thereof  or  so  lodged  therein ;  but  no 
warehouse,  barn,  shed  or  f)ther  outhouse  shall  be  deemed  a  dwell- 
ing-house, or  part  of  a  dwell ing-house,  within  the  meaning  of 
this  or  the  last  section,  unless  the  same  be  joined  to  or  immedi- 
ately connecte«l  with  and  is  part  of  a  dwellingdiouse." 

Section  3515  of  the  same  article  is  the  following:  ''Every 
person  who  shall  wilfully  set  fire  to  or  burn  any  house,  building, 
barn,  stable,  boat  or  vessel  of  another,  or  any  ofiice  or  depot  or 
railroad  car  of  any  railroad  company,  or  any  house  of  public, 
worship,  college,  academy  or  school-house,  or  building  used  as 
such,  or  any  public  building  belonging  to  the  United  States  or 
this  State,  or  to  any  county,  city,  town  or  village,  not  the  sub- 
ject of  arson  in  the  first  or  second  degree,  shall,  on  conviction, 
be  adjudged  guilty  of  arson  in  the  third  degree." 

The  first  question  presented  for  consideration  is  the  suffi- 
ciency of  the  indictment;  defendant  insisting  that  it  fails  to 
charge  any  offense  \mdcr  the  law.  I  have  quoted  the  several  sec- 
tions aforesaid  in  order  to  show  under  which  section  the  indict- 
ment was  intended  to  be  drawn.  Evidently  the  indictment  was 
drawn  under  section  3512,  and  is  for  arson  in  the  first  degree. 
The  lower  court  so  treated  it,  lx>cause  it  instnicted  the  jui-y  that 
if  they  found  the  defendant  guilty  as  charged,  they  should  assess 
his  punishment  at  not  less  than  ten  years'  imprisonment  in  the 
penitentiary,  an  instruction  only  proper  where  a  trial  occurs  for 
arson  in  the  first  degree. 

There  are,  as  it  seems  to  me,  several  defects  in  this  indict- 
ment which  I  will  now  proceed  to  make  comment  upon:  To 
begin  with,  the  indictment  is  bad  because  it  does  not  allege  that 
the  building  burned  was  a  "dwcllinfj-lwusc,"  because  where  this 


STATE  V.  WHITMOUE 


133 


is  tho  statutory  term  employed,  there,  the  indictment  must  use 
it  or  else  the  indictment  will  be  ill.  McLnne  v.  Stale,  4  Ga. 
S.'JS;  Sfate  v.  Sulclilfe,  4  Strobh.  Law,  372;  1  Whart.  Crim. 
Law  (10th  ed.),  sec.  840.  These  words  are  words  dcscriptivo 
of  the  crime  of  arson  in  the  first  degree,  and  therefore  must  be 
employed. 

Within  the  meaning  of  section  3512,  a  jail,  when  "usually 
occupied  by  persons  lodging  therein,  shall  be  deemed  a  dwelling- 
house  of  any  person  having  charge  thereof  or  so  lodging  there- 
in;" but  in  order  to  make  the  burning  of  such  building  arson  in 
the  first  degree,  there  must  be  in  the  building,  at  the  time  of 
the  burning,  some  human  being.  At  common  law  the  owner- 
ship of  the  house  must  be  alleged  and  proved  as  laid.  Whart. 
Crim.  Law  (10th  ed.),  sec.  841. 

Our  statute  has  not  done  away  with  this  requisite  of  the  com- 
mon law.  In  fact,  section  3512  has  made  such  provision  as  ren- 
ders it  easy  to  allege  and  prove  the  gwa^i-ownership.  Such 
ownership  should  therefore  have  been  alleged;  and  as  the  jail 
was  in  charge  of  the  sheriff,  and  as  he  with  his  family  lived  in 
the  upper  story  of  it,  the  ownership  should  have  been  laid  in 
him,  giving  his  name. 

In  Xew  York,  where  the  statute  in  regard  to  arson  in  the  first 
degree  is,  with  the  exception  of  the  words  "in  the  night  time," 
substantially  identical  with  our  own,  it  has  been  ruled  that  the 
house  or  the  building  burned  must  be  described  as  the  house  or 
building  of  the  person  in  possession.  People  v.  Gates,  15  Wend. 
159. 

We  have  been  referred  to  State  v.  Johnson,  93  ]\[o.  73,  as  np- 
holding  the  view  that  the  ownership  has  been  sufficiently  alleged 
in  this  case ;  and  it  is  true  that  case  does  so  hold,  but  that  ruling 
was  made  by  quoting  only  a  portion  of  section  3512,  to  wit: 
"Every  house,  prison,  jail,  or  other  edifice  which  shall  have  been 
tisually  occupied  by  persons  lodging  therein,"  thus  cutting  the 
section  in  two  and  leaving  off  the  important  and  controlling 
words,  "shall  be  deemed  a  dwelling-house  of  any  person  having 
charge  thereof,  or  so  lodging  therein."  With  these  words  thus 
omitted,  that  ruling  was  correct,  but  their  omission  was  an 
emascxdation  of  the  statute,  and  wholly  unwarranted.  That 
case,  therefore,  should  no  longer  be  held  as  binding  authority. 


: 


I    I 


134 


AMERICAN  CRIMINAL  REPORTS. 


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il^' 

w 

it'  ^'' 

An  ncMitionnl  reason  occurs  why  Johnson's  Case  should  not  be 
followed  ns  n  procedent:  the  indictment,  though  for  the  samo 
degree  of  arson  as  the  present  one,  docs  not  allege  that  there 
was  a  human  being  in  (he  penitentiary  at  the  time  of  the  bwn- 
ing.  This  was  doubtless  the  fact,  but  that  did  not  help  the  inr 
dichncnt. 

There  are  doubtless  cases  where  the  charge  consists  in  burn- 
ing a  public  building,  where  no  ownership  is  necessary  to  bo 
specially  alleged,  any  more  than  to  say  that  it  was  *Hhe  county 

jail  of county."    Com.  v.  Williams,  2  Cush.  582;  State  v. 

Hoc,  12  Vt.  93. 

If  the  present  indictment  had  been  drawn  under  section  3515, 
such  a  general  averment  would  indubitably  have  been  sufficient. 
But  the  indictment  was  drawn  under  section  3512  aforesaid, 
and  therefore  it  is  unnecessary  to  consider,  except  by  way  of 
illustration,  what  would  have  been  the  proper  form  of  an  indict- 
ment drawn  under  section  3515. 

Again,  defendant  having  been  tried  and  convicted  under  sec- 
tion 3512  of  arson  in  the  first  degree,  the  State  will  not  be  al- 
lowed to  treat  matters  of  description  which  arc  only  necessary 
to  be  alleged  under  that  section,  as  inmiaterial  and  surplusage, 
and  thus  bring  this  case  under  the  provisions  of  section  3515. 
In  civil  cases,  a  party  will  not  be  allowed  to  take  inconsistent 
positions  in  court.  McClanahan  v.  West,  100  'Mo.  309,  and 
cases  cited.  And  in  criminal  cases  in  like  circumstances,  the 
State  should  also  be  estopped  from  trying  a  cause  on  one  theory 
in  the  lower  court,  and  then  insisting,  in  this  court,  upon  affirm-, 
ance  of  the  judgment  on  another  and  different  theory. 

Inasmuch  as  the  indictment  in  this  case  is,  for  the  reasons 
stated,  wholly  insufficient,  the  judgment  shculd  be  reversed  and 
defendant  discharged,  and  it  is  so  ordered.    All  concur. 

Note  (by  H.  C.  Q.).— Confessions  and  instructions. — Where  defendant 
In  an  alleged  confession  stated  that  another  defendant,  Spivey,  to  be 
tried  separately,  had  asked  him  to  get  into  his  buggy  and  take  a  ride, 
and  told  him  that  he  was  going  to  burn  Mr.  Cosby's  house;  that  it  was 
all  right,  that  he  was  to  be  paid  for  it  by  one  Holmes,  who  acted  for 
the  owner,  Cosby,  and  that  defendant  took  care  of  the  horse  while  the 
other  set  the  fire,  an  instruction  that  if  the  jury  believed  beyond  a  rea- 
sonable doubt  that  defendant  had  been  informed  by  Spivay  of  his  ob- 
ject in  going  to  the  premises,  and  if  he  held  Splvey's  horse  while  he 


STATE  V.  WHITMORE 


135 


or  another  set  fire  to  the  house,  etc.,  that  defendant  would  be  guilty 
of  the  offense  charged,  was  not  erroneous,  as  It  did  not  tell  the  Jury 
bow  to  And  the  facts,  but  simply  what  conclusion  to  draw  if  they  found 
the  facts  to  be  such.  Pcoplt.  v.  Jones,  123  Cal.  65,  65  Pac.  Rep.  698 
(1898). 

Corpus  (IcUcH  and  confessions. — h  is  not  necessary  that  the  evidence 
of  the  criminal  act  should  be  conclrsive  in  order  to  admit  a  confession 
in  evidence;  nor  is  it  necessary  that  the  evidence  of  the  corpus  delicti 
should  itself  connect  the  defendant  with  its  perpetratioQ,  to  admit  it. 
"A  building  may  be  burned  under  such,  suspicious  circumstances  as 
to  indicate  the  act  of  an  incendiary,  and  thus  a  corpus  delicti  estab- 
lished, and  the  doors  opened  for  the  defendant's  admissions  and  con- 
fessions; but  there  must  be  some  evidence  of  some  kind,  tending  to 
show  the  incendiary  character  of  the  fire,  aside  from  these  admissions 
and  confessions."    Id. 

Copy  of  insurance  policy  as  evidence. — "A  copy  of  an  insurance  pol- 
icy covering  the  burned  property  was  received  in  evidence,  over  ap- 
pellant's objection,  after  his  failure,  on  due  notice,  to  produce  the 
original.  No  reason  appears  for  not  introducing  the  copy  made  from 
the  original,  and  in  the  absence  of  some  showing  for  such  omission, 
it  wti.  "^rror  to  receive  a  copy  made  of  a  copy  therefrom.  See  Drumm  v. 
Cessnun  (Kan.  Sup.),  49  Pac.  Rep.  78;  Winn  v.  Patterson,  9  Pet.  663." 
From  iitate  v.  Cohen,  108  Iowa,  208,  78  N.  \V.  Rep.  857. 

Copies  of  policies  admissible. — "Other  assignments  of  error  have  ref- 
erence to  the  means  employed  to  prove  that  the  stock  of  merchandise 
and  store  building  mentioned  In  the  information  were  insured  at  the 
time  of  the  fire.  We  think  the  evidence  Introduced  was  the  best  ob- 
tainable, and  that  is  all  the  law  requires.  The  policies  were  in  posses- 
sion of  the  defendant,  and  he  refused  to  produce  them  after  being  noti- 
fied to  do  so.  It  was  then  competent  to  show  their  contents;  that  they 
were  made  out  and  delivered  by  an  authorized  agent  of  the  companies; 
and  that  the  defendant  was  claiming  indemnity  under  them."  From 
fft^fahts  V.  State,  58  Neb.  225,  78  N.  W.  Rep.  508  (1899). 

ihi  ncr.ship  of  the  property  burned. — Indicted  for  conspiring  to  burn 
thp  property  of  Winne,  trustee.  Appellant,  one  of  the  defendants,  was 
til'  iwner  of  the  premises  where  he  had  his  dwelling-house,  but  Winno 
haa  a  trust  deed  therefor.  Held,  that  the  interest  of  the  appellant  was 
a  contingent  one,  depending  upon  his  payment  of  the  notes  secured  by 
the  trust  deed;  that  it  was  simply  an  equity  of  redemption,  and  that 
the  ownership  was  properly  laid  in  Winne.  Lipschitz  v.  People  (Colo.), 
53  Pac.  Rep.  1     1   (1898). 

Defective  indictment — Necessary  ingredients. — The  court  said  that 
at  common  law  arson  was  a  crime  against  the  habitation  rather  than 
against  property  rights,  and  that  the  object  of  the  statute  was  to  extend 
the  scope  of  arson,  so  as  to  more  fully  protect  property  rights.  The  in- 
dictment wa  lor  a  conspiracy  to  burn,  under  a  statute  providing  that 
"every  person  who  shall  wilfully  and  maliciously  burn,  etc.,  any  dwell- 
ing-house, .  .  .  office,  etc.,  the  property  of  any  other  person,  etc., 
shall  be  deemed  guilty  of  arson,  etc."  The  court  also  said  that  the 
mere  burning  the  house  or  another  vyas  not  arson  at  common  law,  nor 


15  f 


h 


fi  ( 


186 


AMERICAN  CRIMINAL  REPORTS. 


under  the  statute;  that  arson  consists  In  the  wilful  and  malicious  burn- 
ing of  a  house.  That  every  ingredient  under  the  statute  should  have 
been  pleaded.  The  allegations  were,  "feloniously,  wilfully  and  ma- 
liciously did  conspire,  etc.,  to  burn,  etc.,  a  certain  residence  building 
of  the  property  of  Winne,  trustee,  etc.,  etc."  It  was  held  that  the  words 
wilfully  and  maliciously  used,  clearly  referred  to  the  conspiracy 
charged,  and  not  to  the  object  of  the  conspiracy,  and  that  the  indict- 
ment was  fatally  defective  in  not  charging  that  the  conspiracy  was  to 
wilfully  and  maliciously  burn  the  building.    Id. 

Insufficient  evidence. — Indicted  for  burning  a  barn  a  mile  and  a  half 
away  from  his  home.  His  wife  had  left  him  and  lived  with  the  owner 
of  the  barn  and  her  son.  Defendant  said  that  they  had  made  him 
trouble,  and  that  if  they  did  not  send  his  wife  away,  he  would  hurt 
them;  that  he  could  do  a  private  injury  and  that  the  law  could  not 
hurt  him;  that  on  Friday  before  the  fire,  which  was  on  Saturday  night, 
he  Inquired  whether  a  creek  could  be  crossed  at  a  certain  place,  being 
on  a  short  cut  between  their  places,  and  that  defendant  went  in  that 
direction;  that  a  witness  saw  some  one  at  four  o'clock  the  night  of  the 
fire  passing  in  the  direction  where  defendant  and  others  resided;  that 
when  defendant  was  arrested  on  Sunday,  he  said  he  had  been  up  to 
midnight  the  night  before  killing  a  beef.  The  court  said  that  "eliminat- 
ing the  threats,  there  was  nothing  left,"  and  that  the  jury  should  have 
been  instructed  to  acquit.  State  v.  Rhodes,  111  N.  C.  647,  15  S.  E.  Rep. 
1038. 


Atkixsox  v.  State. 

58  Neb.  356—78  N.  W.  Rep.  621. 

Decided  March  22,  1899. 

Assault   with    Ixtext:    Instructions — Reasonable   douht — Defending 
one's  property  on  Halloween  night. 

1.  In  a  felony  case,  it  is  reversible  error  for  a  court  to  charge  the  jury 

that  it  may  find  the  defendant  guilty  if  it  entertains  a  reasonable 
doubt  of  the  truth  of  each  or  all  of  the  material  allegations  of 
the  indictment. 

2.  The  law  is  that,  if  the  jury  entertains  a  reasonable  doubt  as  to  the 

truth  of  any  material  allegation  of  the  indictment,  the  prisoner 
is  entitled  to  an  acquittal. 

3.  When  a  citizen  assaults  one  of  a  mob  in  the  wrongful  possession  of, 

and  taking  away,  his  prop-rty,  for  the  purposes  of  injuring  or  de- 
stroying it,  w'e  b  ••,  under  all  the  circumstances,  he  was  justified 
in  making  the  assault,  is  a  question  for  the  jury. 

4.  An  assemblage  of  men,  on  Halloween  night,  October  31st.  engaged 

in  moving,  injuring,  and  destroying  property,  is  a  mob  engaged 


ATKINSON  V.  STATE. 


13( 


In  vlclatlng  the  law;  and  the  citizen  may  use  such  force  as  is 
actually  necessary  to  protect  his  person  and  property  from  injury 
at  its  hands. 

(Syllabus  by  the  Court.) 

(The  above  is  the  syllabus  as  officially  reported;  but  there  is  an  evi- 
dent error  in  the  first  paragraph,  the  instruction  referred  to  being: 
"You  are  instructed  that  if  you  are  convinced  by  the  evidence,  beyond 
a  reasonable  doubt,  of  the  truth  of  each  and  all  of  said  material  alle- 
gations, then  you  may  find  the  defendant  guilty.  If  not  so  convinced, 
or  if  you  entertain  a  reasonable  doubt  of  the  truth  of  each  or  all  of  said 
material  allegations,  then  you  should  find  the  defendant  not  guilty." — 
J.  F.  G.) 

Error  to  the  District  Court  of  Dawson  County;  Westover, 
Judge. 

Harley  Atkinson,  being  convicted  of  assault  with  intent  to 
commit  groat  bodily  harm,  brings  error.    Reversed. 

G.  W.  Fox  and  E.  C.  Cook,  for  the  plaintiff  in  error. 
C  J.  Smyth,  Attorney-General,  and  TF.  D.  Oldham,  Deputy 
xVttomey-General,  for  the  State. 

Raoan,  C.  Harley  Atkinson,  in  the  district  court  of  Dawson 
county,  was  indicted  for  having  on  the  1st  day  of  November, 
1898,  in  said  county,  assaulted  one  >Villiain  King,  with  intent 
then  and  there  to  inflict  upon  him  great  bodily  harm.  Atkinson 
was  convicted,  and  to  reverse  the  judgment  pronounced  thereon 
he  has  filed  here  a  petition  in  error. 

The  evidence,  and  especially  that  on  behalf  of  the  prisoner, 
tends  to  show  that  Atkinson  lived  with  his  family,  in  Cozad, 
!N^eb.,  and  on  the  31st  day  of  October,  1898,  was  operating  a 
threshing  machine  some  six  miles  from  his  home.  On  the  even- 
ing of  that  day  he  borrowed  a  buggy  from  the  man  for  whom 
he  was  thre?hing,  in  which  he  drove  to  his  home,  which  he 
reached  about  nine  o'clock  at  night.  There  was  no  place  in  his 
barn  where  a  buggy  could  be  stored,  and  he  left  it  standing 
against  the  outside  of  his  barn.  During  the  night  a  crowd  of 
men  were  parading  the  streets  of  Cozad,  disturbing  and  injur- 
ing property,  and  ignoring  the  efforts  of  the  officers  of  the  law 
and  others  to  restrain  them.  Wagons,  buggies  and  water-closets 
were  being  moved  and  hauled  away,  and  in  some  instances 


( '■ 


i 


^  ll 


m  » 


138 


AMERICAN  CRIMINAL  REPORTS. 


broken  and  injured,  by  this  crowd.  The  crowd  wished  to  got 
possession  of  the  hviggy  in  which  the  prison  3r  had  ridden  to 
town.  Some  of  the  crowd  tried  to  get  the  buggy  about  ten 
o'clock  that  evening.  The  prisoner  fired  a  gun  over  them  at  this 
time  to  frighten  them  away,  and  this  enraged  the  crowd,  and  it 
threatened  to  get  possession  of  the  prisoner's  buggy  at  all  haz- 
ards, and  to  destroy  it.  The  prisoner  heard  these  threats.  Some 
persons  in  the  crowd  threatened  to  shoot  the  prisoner  and  to 
whip  him,  and  some  of  the  crowd  tried  to  get  hold  of  the  pris- 
oner for  the  purpose  of  hurting  him.  The  prisoner  knew  of 
these  threats  and  attempts.  This  crowd  was  repeatedly  warned 
by  the  prisoner  and  others  that  the  prisoner  would  shoot,  if  an 
attempt  was  made  to  take  his  buggy.  The  crowd  replied  that 
they  would  have  it,  if  they  did  get  shot,  and  that  when  they  did 
get  it  they  Avould  destroy  it.  This  disorderly  mob  paraded 
around  until  between  three  and  four  o'clock  in  the  morning.  At 
that  time  a  man  named  King,  one  of  the  crowd,  followed  by  the 
others  thereof,  took  hold  of  the  buggj'  and  started  to  run  away 
with  it.  The  prisoner  called  to  him  to  drop  it.  This  King  re- 
fused to  do.  The  prisoner  then  fired  a  gun  over  him,  with  a 
view  of  frightening  him.  King  still  retained  possession  of  the 
bugg}',  and  was  moving  off  with  it,  when  the  defendant  inten- 
tionally shot  him  in  the  leg  Avith  a  shotgun,  inflicting  a  flesh 
wound.  The  prisoner  believed  at  the  time  he  shot  King  that 
the  crowd  intended  to  inunediately  destroy  the  buggy  if  King 
got  away  with  it,  and  he  shot  him  for  the  puiiiose  of  stopping 
him,  and  preventing  the  crowd  from  taking  the  buggy  away  and 
destroying  it.  The  prisoner  at  this  time  was  afraid  to  leave  his 
house  to  procure  an  officer  of  the  law  to  protect  his  property,  be- 
cause he  was  afraid  of  violence  at  the  hands  of  this  mob. 

On  the  trial  the  district  court,  after  instructing  the  jury  as 
to  the  material  allegations  of  the  information,  charged  them  as 
follows:  **You  are  instructed  that  if  you  are  convinced  by  the 
evidence,  beyond  a  reasonable  doubt,  of  the  truth  of  each  and 
all  of  said  material  allegations,  then  you  may  find  the  defend- 
ant guilty.  If  not  so  convinced,  or  if  you  entei-tain  a  reason- 
able doubt  of  the  truth  of  each  or  all  of  said  material  allega- 
tions, then  you  should  find  the  defendant  not  guilty."  The  giv- 
ing of  this  instruction  was  prejudicially  erroneous.     By  it  the 


ATKINSON  V.  STATE. 


139 


court,  in  effect,  told  the  jury  that,  to  entitle  the  defendant  to  an 
acquittal,  they  must  entertain  a  reasonable  doubt  as  to  the  truth 
of  each  or  all  of  the  material  allegations  of  the  information. 
This  is  not  the  law.  On  the  contrary,  the  law  is  that,  if  the 
jury  entertain  a  reasonable  doubt  as  to  the  truth  of  any  material 
allegation  of  the  information,  the  prisoner  is  entitled  to  an  ac- 
quittal. 

2.  Another  instruction  given  by  the  court  was  as  follows: 
"The  court  instructs  the  jury  that  an  assault  is  an  unlawful  at: 
tempt,  coupled  with  the  present  ability,  to  commit  a  violent  in- 
jury upon  another;  and  in  this  case,  unless  the  jury  believe  from 
the  evidence,  beyond  a  reasonable  doubt,  that  the  defendant  shot 
William  King  with  a  loaded  shotgun,  intending  to  shoot  him, 
and  with  the  then  present  ability  to  shoot  him,  then  the  jury 
should  find  the  defendant  not  guilty."  This  instruction,  in 
view  of  the  evidence,  was  wrong.  The  prisoner  did  not  contend 
that  he  did  not  shoot  William  King  with  a  loaded  shotgun,  nor 
that  he  did  not  intend  to  shoot  him,  nor  that  he  did  not  then 
and  there  have  the  present  ability  to  shoot  him ;  but  the  defense 
was  that  ho  shot  him  in  defonf^e  of  his  property,  and  resorted  to 
this  means  because  he  was  afraid  to  leave  his  house  to  procure 
the  apsistance  of  the  officers  of  the  law  for  the  protection  of  his 
])roperty,  as  he  feared  that,  if  ho  did  so,  he  would  receive  great 
bodily  injury  at  the  hands  of  this  mob.  •  Ey  the  instruction  last 
<|uoted  the  court,  in  i-fTeet,  took  this  defense  of  the  prisoner  from 
the  jury,  and  told  thom  in  convict  the  prisoner,  if  they  found 
that  he,  with  ability  to  slu)ot,  intentionally  shot  King  with  a 
loaded  shotgun.  We  do  not  decide  whether  the  prisoner  was, 
under  the  circumstances  detailed  in  the  evidence,  justified  in 
shooting  King.  Whether  he  was  or  not  was  a  question  of  fact 
for  the  jury,  and  this  defense  the  prisoner  was  entitled  to  have 
the  jury  pass  upon.  By  the  instruction  under  consideration, 
the  court  took  that  theory  entirely  from  the  jury,  and,  in  effect, 
instructed  them  to  find  him  guilty.  We  are  not  justifying  the 
possessor  of  property  for  shooting  one  who  is  committing  a  tres- 
pass thereon.  But  here  was  a  man  in  his  own  home,  in  the 
peaceable  and  quiet  possession  of  his  property.  A  howling  mob 
of  brawlers,  masquerading  under  the  name  of  "Ilalloweeners,'' 
is  parading  the  streets  of  his  town,  injuring  and  destroying 


il 

m 


Mil 


:"i 


140 


AMERICAN  CRIMINAL  REPORTS. 


property;  threatening  to  take  the  property  of  this  prisoner  and 
destroy  it;  threatening  him  with  bodily  injury  if  he  interferes; 
and  this  mob  takes  possession  of  his  property  and  attempts  to 
take  it  away.  It  was  for  the  jury  to  say  whether  the  prisoner, 
as  a  reasonable  human  being,  was  justified,  under  the  cii'cum- 
stances,  in  making  the  assault  he  did  for  the  purpose  of  protect- 
ing his  property;  for  he  certainly  had  the  right  to  protect  his 
OAvn.  The  fact  that  this  crowd  was  observing  the  barbarous 
l)ractice  of  committing  mischief  and  depredation  on  the  even- 
ing of  the  31st  of  October  did  not  deprive  the  prisoner  of  the 
right  to  defend  himself  and  his  property  against  their  unlawful 
attacks,  for,  no  matter  under  what  name  they  may  have  mas- 
queraded, the  crowd  was  a  mob,  violating  the  law;  and  the 
county  attorney  of  Dawson  county  woTild  do  no  more  than  his 
duty  if  he  caused  each  member  of  this  crowd  of  midnight 
marauders  to  be  indicted  and  punished.  For  the  errors  pointed 
out  in  the  instructions,  the  judgment  of  the  district  court  is  re- 
versed, and  the  cause  remanded.    Reversed  and  remanded. 


State  v.  Goeeing. 


106  Iowa,  636—77  N.  W.  Rep.  327. 

Decided  December  14,  1898. 

Assault  with  Intent:    Self-defense — Instructions. 

1.  One  unlawfully  assaulted  may,  in  defense,  repel  force  by  force,  the 

degree  of  which  depends  on  the  character  of  the  assault.  It  la 
error  to  instruct  the  jury  that  such  right  to  repel  by  force  can 
only  be  used  when  there  Is  apparent  danger  of  such  person  being 
killed  or  suffering  great  bodily  injury. 

2.  If  the  court  undertakes  to  instruct  the  Jury  as  to  the  law,  "it  is 

its  duty  to  do  so  correctly;  and  a  failure  in  this  respect  can  be 
taken  advantage  of  by  defendant,"  without  asking  for  a  counter 
instruction. 

Appeal  from  District  Court,  Marion  County;  Hon.  J.  D. 
Gamble,  Judge. 

Defendant,  befng  convicted  of  an  assault  with  intent  to  in- 
flict great  bodily  injury,  appeals.    Reversed. 


STATE  V.  GOERING. 


141 


WATERJtAN,  J.  The  assault  is  charged  to  have  been  made 
upon  one  Lewis  Leits.  The  evidence  is  not  before  us.  The 
record  we  have  sets  out  the  indictment  and  the  instructions 
given  the  jury,  and  this  statement  of  facts:  "There  was  evi- 
dence on  the  part  of  the  State  tending  to  prove  that  the  defend- 
ant struck  and  beat  one  Lewis  Leits  witli  a  chib  and  whip,  the 
said  Lewis  Leits  being  at  the  time  unarmed.  On  the  part  of 
defendant,  there  Avas  evidence  tending  to  show  that  the  said 
Lewis  Leits  assaulted  the  defendant  with  a  knife  in  his  hand, 
and  that,  when  said  assault  was  made,  the  defendant  struck  him 
several  blows,  but  with  his  fists  only,  and  that  he  did  not  at  any 
time  strike  him  with  anything  but  his  fists."  The  sole  coni- 
])laint  is  of  the  tenth  paragTaph  of  the  court's  charge  to  the  jury, 
which  is  as  follows:  ''The  defendant  pleads  not  guilty,  which 
plea  puts  in  issue  every  material  fact  necessary  to  support  the 
indictment,  and  which  must  be  established  by  the  evidence  be- 
yond a  reasonable  doubt.  And,  for  further  and  additionul  de- 
fense, the  defendant  claims  that,  at  the  time  of  the  altercation 
with  the  said  Lewis  Leits,  he  was  acting  in  self-defense.  It  is 
incumbent  upon  the  State  to  prove  beyond  a  reasonable  doubt 
that  the  defendant  at  the  time  did  not  act  in  self-defense.  It  is 
a  law  that  a  person  may  resist  force  willi  force  in  the  defense  of 
his  person  against  one  who  manifestly  intends  or  endeavors  by 
violence  to  kill  him  or  inflict  upon  him  great  bodily  injury,  and 
if  a  conflict  ensues  in  such  a  pase,  and  injury  follows,  such  re- 
sistance is  justifiable.  To  justify  the  defendant,  however,  in 
thus  resisting  and  inflicting  such  injuries  in  self-defense,  he  is 
authorized  to  use  such  force,  and  such  force  only,  as  may  be 
necessary,  or  ajipear  to  him,  as  a  reasonably  careful,  prudent, 
and  cautious  man,  to  be  necessary,  to  protect  himself  from  in- 
jury. While  the  danger  must  be  imminent  and  perilous,  yet  it 
is  not  necessary  that  the  danger  should  be  actual,  but  it  must 
appear  to  him,  as  a  reasonably  careful,  prudent,  and  cautious 
man,  to  be  actual,  and  such  as  that  a  reasonably  careful,  pru- 
dent, and  cautious  man  would  have  good  reason  to  believe  that 
his  life  was  in  danger,  or  that  he  was  about  to  suffer  bodily  in- 
jury. And,  if  such  be  the  fact,  he  would  then  be  authorized, 
'under  the  law,  to  make  resistance  thereto,  even  though  such  re- 
sistance might  result  in  the  death  of  his  assailant,  or  in  his  suf- 


If' 


142 


AMERICAN  CRIMINAL  REPORTS. 


faring  great  bodily  injury.  "Wliere  an  assault  is  made,  and 
there  is  a  reasonable  opportunity  for  the  assailed  party  to  with- 
draw and  avoid  the  conflict  and  the  threatened  or  feared  injury, 
it  is  his  duty  to  withdraw  and  avoid  the  conflict  or  injury.  If  he 
has  such  reasonable  opportunity  to  withdraw,  and  fails  to  do  so, 
then  he  would  not  be  justified  in  self-defense  in  inflicting  pain- 
ful or  hurtful  woinds  upon  his  assailant.  An  assailed  party  is 
not  required  to  run  away  or  withdraw  when  an  assault  is  made 
with  such  a  violence  that  he  cannot  safely  withdraw,  or  if  it 
appear  to  him,  as  a  reasonably  careful,  prudent,  and  cautious 
man,  that  he  could  not  safely  withdraw  and  avoid  the  conflict 
and  the  injury  threatened;  but  under  such  circumstances  he 
would  be  authorized  to  stand  and  resist  the  assault  with  such 
force,  and  only  such  force,  and  with  such  weapons  or  means,  as 
were  necessary  therefor,  or  such  as  would  appear  to  him  as  a 
reasonably  careful,  prudent,  and  cautious  man,  under  like  cii'- 
cumstances  necessary  therefor.  And  in  this  case,  if  you  find 
fi-om  the  evidence  that  Lewis  Leits  assaulted  the  defendant  in 
such  a  manner  and  under  such  circumstances  as  that  the  defend- 
and  did  believe,  or  a^  a  reasonably  careful,  prudent,  and  cau- 
tious man  had  reason  to  believe,  that  he  was  about  to  be  hilled, 
or  to  suffer  some  great  bodily  injury,  and  that  he  could  not  with- 
draw and  avoid  the  assault  and  encounter,  then  he  would  be 
justified  in  using  such  force,  and  cuch  force  only,  as  would  en- 
able him  to  resist  the  assault,  and  protect  his  life,  or  protect 
himself  from  such  great  bodily  injury,  and  would  be  authorized, 
if  it  were  necessary,  as  hereinbefore  defined,  to  inflict  upon  the 
said  Lewis  Leits  such  injury  as  was  reasonably  necessary  for 
his  protection.  But  if  he  could  have  withdrawn  from  the  con- 
flict, and  avoided  the  same,  or  if  it  were  not  necessary,  or  if  it 
did  not  appear  to  him,  as  a  reasonably  carefid,  prudent,  and 
caidious  man,  necessary  to  protect  his  life,  or  to  protect  himself 
from  great  bodily  injury  or  harm,  to  inflict  painful  or  hurtful 
wounds  or  other  injury  upon  the  said  Lewis  Leits,  then  he 
wotdd  not  be  authorized,  under  the  law,  in  self-defense,  to  have 
inflicted  such  painful  or  hurtful  ivounds  or  other  injury  upon 
the  said  Lewis  Leits.  In  determining  whether  an  assault,  if 
any,  was  made  in  such  a  manner  by  Lewis  Leits  as  would  au- 
thorize the  defendant  in  self-defense,  as  hereinbefore  defined. 


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facts 

this 

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right 


STATE  V.  GOEBINO. 


U3 


to  inflict  upon  tlio  said  Lewis  Leits  painful  or  hurtfiil  wounds, 
if  any,  or  to  inflict  upon  him  any  injury,  you  should  take  into 
consideration  the  relative  strength  of  the  two  contending  par- 
tics;  the  nature  and  character  of  the  assault,  if  any,  made  by 
Lewis  Leits  upon  the  defendant;  whether  made  with  anns  or 
weapons  of  some  kind,  or  whether  made  simply  with  the  hands 
or  fists ;  the  feeling  existing  between  the  parties  at  the  time  of 
and  prior  to  the  assault;  the  character  and  number  of  blows 
given  by  the  defendant,  if  any;  and  all  the  other  surrounding 
facts  and  circumstances  disclosed  and  shown  by  the  evidence  in 
tliis  case." 

The  complaint  made  of  this  instruction  is  that  it  limits  the 
right  of  defendant  to  act  in  self-defense  to  cases  where  he  is  in 
reasonable  fear  of  losing  his  life  or  of  suffering  great  bodily 
ha  "m,  at  the  hands  of  his  adversary.  We  have  italicised  the  por- 
tions of  the  instruction  to  which  appellant  excepts.  A  very 
cursory  reading  will  show  that  there  is  good  ground  for  the  crit- 
icism made.  Fo\ir  times  in  this  single  paragraph  is  the  thought 
repeated  that,  if  Leits  assaulted  defendant,  the  latter  had  no 
right  to  defend  himself  unless  it  reasonably  appeared  to  him 
that  his  life  was  in  danger,  or  that  he  was  likely  to  suffer  great 
bodily  harm  from  such  assault.  As  an  abstract  proposition  of 
law,  this  statement  is  incorrect.  The  rule  is  elementary  that 
one  unlawfully  assailed  may,  in  self-protection,  repel  force  with 
force.  The  extent  to  which  he  may  go  is  to  be  measured  by  the 
character  of  the  assault ;  but  the  right,  as  we  have  stated  it,  ex- 
ists under  any  and  all  circumstances.  Counsel  for  the  State 
insist  that  the  instruction  may  have  been  correct  imder  the  evi- 
dence in  this  case,  and  that,  as  the  evidence  is  not  before  us,  we 
should  presume  a  state  of  facts  justifying  the  rule  given.  It 
does,  however,  appear  in  the  record,  that  there  was  evidence  on 
the  part  of  defendant  tending  to  prove  that  Leits,  armed  with  a 
knife,  assaulted  him,  and  that  defendant,  in  resistance,  struck 
his  assailant  with  his  firsts,  and  with  those  only.  It  is  manifest 
that  the  rule  announced  is  erroneous  when  applied  to  any  such 
state  of  facts. 

2.  But  counsel  for  the  State  say  that  the  defendant  cannot 
be  heard  now  to  urge  an  objection  to  this  instruction,  because  he 
did  not  ask  that  any  different  rule  be  given.    Where  the  court 


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AMERICAN  CRIMINAL  REPORTS. 


undertakes  to  give  the  law  to  the  jury,  it  is  its  duty  to  do  so  cor- 
rectly; aiul  a  failure  in  this  respect  can  be  taken  advantage  of 
by  defendant.  The  rule  that  counsel  have  in  mind,  doubtless, 
is  that  whore  the  instnictions  given  are  correct,  so  far  as  they 
go,  but  objection  is  made  that  they  are  not  sufficiently  specific, 
such  conijjlaint  will  not  be  heard,  if  no  more  specific  requests 
are  submitted.  Stale  v.  Viers,  82  Iowa,  397,  48  JT.  W.  Rep. 
7?,-2,  and  cases  cited.  "We  know  of  no  rule  that  requires  a  party 
to  do  more  than  except  to  an  instruction  containing  affirmative 
error,  in  order  to  secure  its  review  by  this  court.  For  the  error 
complained  of  in  this  instruction,  the  judgment  is  reversed. 

Note  (by  J.  F.  G.). — The  old  common-law  offense  of  assault  and  bat- 
tery is  In  law  deemed  to,  and  should,  cover  all  of  those  physical  en- 
counters occurring  under  ordinary  circumstances,  even  though  the  de- 
gree of  violence  be  great  and  the  punishment  of  the  victim  severe,  if 
no  specific  intention  to  destroy  life,  or  to  commit  a  permanent  or 
serious  injury,  be  found.  The  court  of  appeals  of  Kentucky  In  Woodson 
V.  Commomcealth,  21  S.  W.  Rep.  584,  announces  substantially  this  doc- 
trine in  the  following  opinion: 

Hazelkigo,  J.  The  appellant  and  another  negro,  Tyler  Barnes,  who 
was  his  intimate  friend,  met  in  the  back  room  of  a  saloon,  and  had 
some  hot  words  over  a  trivial  matter.  Barnes  stepped  into  the  front 
room,  where  a  white  man  directed  the  barkeeper  to  let  him  have  a 
drink,  hearing  which,  appellant  came  forward,  and  leaned  In  the  door- 
way of  the  partition,  saying  to  the  barkeeper,  by  way  of  asking  for  a 
drink,  "Boss,  what's  the  matter  with  me?"  He  was  at  once  told  by 
Barnes  not  to  come  in.  He  responded  that  he  was  not  bothering  any- 
one, whereupon  Barnes  picked  up  a  bar  glass,  and  threw  it  violently 
at  the  appellant,  who,  however,  dodged,  dropped  back  to  the  stove, 
picked  up  an  iron  poker,  came  forward,  and  struck  his  assailant, 
knocking  him  down,  and  cutting  a  gash  in  his  head,  but,  of  course, 
breaking  no  bones.  He  dropped  the  poker,  and  ran,  followed  by  Barnes. 
At  the  following  term  of  court  the  appellant  was  indicted  for  wilfully 
and  maliciously  striking  and  wounding  with  a  deadly  weapon,  with  in- 
tent to  kill,  was  convicted  of  a  felony,  and  sentenced  to  the  peniten- 
tiary for  two  years.  He  complains  of  the  instructions  of  the  court,  by 
the  first  one  of  which  the  jury  was  told  that  if  they  believed  from  the 
evidence,  "beyond  a  reasonable  doubt,  that  the  defendant.  In  Larue 
county,  and  before  the  finding  of  the  Indictment  read  to  them,  struck 
the  witness  Tyler  Barnes  with  an  iron  poker,  with  intention  to  kill 
said  Barnes,  they  should  find  him  guilty,  as  charged  in  the  indictment, 
and  fix  his  punishment  at  imprisonment  in  the  penitentiary,"  etc. 

Here  the  court  assumes  that  the  iron  poker,  as  used,  was  a  deadly 
weapon,  when  that  question,  considering  its  size,  and  the  manner  of 
Its  use,  should  have  been  left  to  the  jury.  Moreover,  it  was  as  neces- 
sary that  the  jury  should  believe  that  the  striking  was  done  mall- 


SMITH  V.  STATE 


145 


clously,  as  that  It  was  done  at  all.  The  jury  are  told  to  convict  of  a 
malicious  striking,  and  therefore  of  a  felony,  although  they  may  have 
believed  the  blow  to  have  been  inflicted  in  sudden  heat  and  passion, 
or  in  sudden  affray,  in  which  event  it  would  have  been,  in  law,  a  mis- 
demeanor only.  No  instruction  was  given  as  to  a  sudden  affray.  The 
appellant  was  in  fact  guilty  of  a  breach  of  the  peace,  or,  at  most,  of  an 
assault  and  battery,  provided  he  did  not  act  in  self-defense.  The  Judg- 
ment below  is  reversed,  and  cause  remanded,  with  instructions  to  pro- 
ceed as  herein  indicated. 


Smith  v.  State. 


68  Neb.  531—78  N.  W.  Rep.  1059. 

Decided  May  3,  1899. 

Assault   with    Intent:    Information — Intent — Instructions — Evidence 

insufficient. 

1.  The  effect  of  section  176  of  the  Criminal  Code,  relative  to  an  as- 

sault with  intent  to  inflict  great  bodily  injury,  was  to  create  a  new 
and  substantive  crime, — one  purely  statutory;  and  it  is  sufficient, 
In  an  information,  to  charge  the  crime  in  the  language  of  the 
statute,  without  a  statement  of  the  means  with  which  the  assault 
was  committed.  Smith  v.  State,  34  Neb.  689,  52  N.  W.  Rep.  573; 
Murphey  v.  State,  43  Neb.  34,  61  N.  W.  Rep.  491. 

2.  The  term  "assault,"  used  without  qualification,  has  a  clear  and  es- 

tablished import  in  criminal  law. 

3.  Whether  the  particular  intent  elemental  of  a  chart  3  of  assault  with 

intent  to  inflict  great  bodily  injury  has  been  shown  is  generally 
a  question  of  fact  for  the  Jury. 

I.  It  is  not  available  matter  of  complaint,  for  a  person  at  whose  re- 
quest a  Jury  has  been  instructed  on  a  speciflc  point,  that  the  court 
gave  an  instruction  on  his  own  motion  on  the  same  subject. 

B.  The  verdict  held  not  warranted  and  sustained  by  the  evidence. 
(Syllabus  by  the  Court.) 

EiTor  to  District  Court  of  Butler  County;  Sedgwick,  Judge. 
Clinton  Smith,  being  convicted  of  assault  with  intent  to  do 
great  bodily  injury,  brings  error.    Eeversed. 

E.  R.  Dean,  for  the  plaintiff  in  error. 

C.  J.  Smyth,  Atty.  Gen.,  and  IF.  D.  Oldham,  Dep.  Atty.  Gen., 
for  the  State. 

Haeeison,  C.  J.     An  information  was  filed  in  the  district 
court  of  Butler  county  which  contained  two  counts,  in  the  first 
Vol.  XI  — 10 


110 


AMERICAN  CRIMINAL  REPORTS. 


h      I 


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of  wliieli  the  plaintiflf  in  cvrov  was  clinrgod  with  an  assault  upon 
(MinrU's  T.  JcMildns  with  intent  to  kill  and  murder  him;  and  in 
the  rtccniid  eoiint  the  accusation  was  of  an  assault  upon  the  sanio 
])cis()ii  with  intent  to  do  him  great  hodilj  injury.  The  nccused, 
oil  arraignment,  pleaded  not  guilty;  and  a  trial  rcsiilted  in  a 
verdict  of  his  gnilt  of  the  charge  in  the  second  count  of  the  in- 
f<.rmation,  an<l  not  guilty  as  to  the  first.  The  sentence  was  of 
im])risonment  in  the  penitentiary  for  a  term  of  one  year. 

It  is  urged  that  the  infin-mation  is  insufficient.  This  refers 
to  the  count  of  the  charge  in  which  the  accused  was  detcrmine«l 
guilty.  The  offense  was  charged  in  the  language  of  the  statute. 
11ie  exact  question  here  raised  was  under  consideration,  and 
was  the  snhject  ol  decision,  hy  this  court,  in  the  case  of  Mtir- 
phey  i\  Stale,  43  Xeh.  34,  01  X.  W.  Rep.  491,  and  it  was  then 
announced  that  a  complaint  in  which  the  offense  was  alleged  in 
the  language  of  the  statute  was  sufficient.  We  are  now  satisfied 
that  the  correct  rule  was  then  stated,  and  will  adhere  to  it. 

It  is  argued  that  section  lib  of  the  Criminal  Code,  upon 
which  the  prosectition  was  hased,  is  defective,  in  that  in  out- 
lininsr  the  offense  the  word  ''assault"  is  used,  and  the  acts  which 
will  constitute  it  are  not  set  forth,  and,  further,  that  an  "as- 
saidt"  is  not  specifically  defined  in  our  Code.  The  word  "as- 
sault" has  an  exact  and  well-known  general  import,  when  used 
in  the  sense  in  which  it  appears  in  the  section  of  the  Criminal 
Code  to  Avhich  reference  has  hcen  made.  The  applicahle  defini- 
tion is  given  in  the  text-hooks  on  Criminal  Law  and  the  law 
dictionaries.  The  signification  which  it  has  in  criminal  law  is 
the  one  which  must  be  accorded  it  in  the  portion  of  the  statutes 
herein  drawn  into  actual  use. 

It  is  contended  that  the  trial  court  erred  in  the  submission  in 
its  instructions  to  the  jury  of  the  question  of  the  guilt  or  in- 
nocence of  the  accused  of  the  crime  charged  in  the  first  count 
of  the  information,  for  the  reason  that  there  was  no  evidence 
which  tended  to  support  the  allegations  of  said  first  count.  For 
the  accused  there  was  requested  and  given  an  instruction  which 
challenged  the  attention  of  the  jury  to  the  guilt  or  innocence  of 
the  party  on  trial  of  the  crime  alleged  in  the  first  count  of  the 
information.  This  being  tnie,  he  cannot  be  heard  to  complain 
that  the  court  directed  the  attention  of  the  jury  to  the  samo 


W( 


SMITH  V.  STATE. 


U7 


snl)joct.  Tiirhards  v.  Boroivshj,  30  Xeb.  774,  nS  X.  W.  Rop. 
L'T7;  Joiiascn  r.  Kcnncdji,  \W  Xob.  31:5,  58  X.  W.  Rop.  122; 
t'/7/y  o/  0/«<///fT  r.  Pilchards,  \\)  Xd..  244,  (58  X.  W.  Rep.  528. 

It  is  strenuously  urgod  that  tlie  evidence  is  insuftieient  to  sus- 
tiiin  the  verdict.  I{elntive  to  the  main  ehMuental  facts  of  tlio 
occurrences  upon  which  the  cliarge  of  the  information  wwa 
])re(licated,  there  was  no  conflict  in  the  evidence,  but  if  some  of 
the  incidents  or  nets  there  were  disaja'cements  or  differences. 
We  have  given  the  evidence  a  careful  examination,  and  do  not 
deem  it  necessarv  to  quote  from  it,  or  summarize  all  of  it  here. 
AVe  will  but  refer  specifically  to  a  few  of  the  '.naln  facts.  It 
ap]»eared  that  the  accused  and  his  son  had,  each  in  charge  of  a 
l<'iim  of  horses,  gone  from  the  farm  to  the  market  with  a  load 
of  wheat,  and  were  returning  home,  when  they  discovered  two 
])artie3  (one  of  them,  Charles  T.  Jenkins)  leading  and  driving 
along  the  highway  some  live  stock  (cows  and  colts),  of  which 
the  accused  evidently  claimed  ownership  or  right  of  possession. 
lie  told  the  son  to  follow  the  parties  and  keep  them  in  sight. 
He  went  home,  unhitched  the  team,  hitched  one  horse  to  a  road 
cart,  in  which  he  had  placed,  or  had  procured  it  to  be  done,  a 
shotgun,  jumped  into  the  cart,  and  drove  along  the  road  after 
the  parties  who  ha<I  the  stock,  mitil  he  overtook  them,  when  ho 
alighted  from  the  cart,  took  therefrom  the  shotgun,  and  accosted 
Jenkins,  wlio  was  walking  along  the  highway  behind  the  stock, 
in  the  following  language  (this  is  of  the  accused's  testimony) : 
''I  says,  'Where  are  you  going  with  this  stock,'  I  says,  'you  black 
son  of  a  bitch  V  " — and  demanded  that  the  rtock  be  i-eleased. 
There  was  more  similar  hanguage  on  the  part  of  the  accused, 
but  no  direct  verbal  threats  of  the  doing  of  any  specific  acts. 
Smith  punched  Jenkins  on  the  legs  and  in  the  sides  with  the 
barrel  end  of  the  gun.  Jenkins  expressed  himself  as  not  being 
able  to  stand  "that  kind  of  an  argument,"  and  the  stock  was  rc- 
leased.  Smith  (so  Jenkins  stated)  then  said,  "Xow,  you  son  of 
a  bitch,  take  this  stuff  back  where  j'ou  got  it,"  and  conimenced 
"jabbing"  him  again  with  the  gun ;  and  it  further  appears  that 
during  the  continuance  of  the  affair,  at  a  time  when  Jenkins 
had  hold  of  the  gun,  the  accused  used  his  fist,  and  struck  Jenkins 
a  number  of  times  on  the  head  and  in  the  face.  The  foregoing 
will  serve  to  convey  a  general  idea  of  what  happened  at  the  time 


¥i 


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' 

148 


AMERICAN  CRIMINAL  REPORTS. 


it  is  allogod  in  the  infonnntion  herein  that  the  crinio  of  which 
lie  wns  iidjudped  guilty  was  committed  by  the  phiintiiT  in  error. 
The  main  point  is  in  regard  to  tlio  appearance  of  the  intent  on 
the  part  of  the  accused  to  inflict  great  bodily  injury  upon  the 
party  alleged  to  have  been  assaulted  with  such  intent.  It  has 
been  stated  by  this  court:  *'Tho  term  'great  bodily  injury,'  as 
there  employed  [referring  to  the  statute],  is  not  susceptible  of 
a  precise  definition,  hut  implies  an  injury  of  a  graver  and  more 
serious  character  than  an  ordinary  battery,  and  whether  a  par- 
ticular case  is  within  the  meaning  of  tho  statute  is  generally  a 
question  of  fact  for  the  jury."  Murphcy  v.  State,  supra.  See, 
also,  a  discussion  of  the  subject  of  intention  in  the  opinion  in 
Krchuivy  v.  Slate,  43  Xeb.  337,  Gl  N.  W.  Ilep.  G2S.  A  careful 
consideration  of  all  the  evidence;  convinces  us  that  there  was  not 
sufHciciU  therein  to  warrant  the  finding  by  tho  jury  that  tliero 
was  existc.it  the  intent  which  is  a  requisite  of  tho  statutory 
crime,  of  the  guilt  of  which  the  verdict  convicted  the  accused. 
The  record  before  us  discloses  an  aggravated  assault  and  battery 
by  him,  but  not  an  assault  with  intent  to  do  great  bodily  injury. 
Hence  the  sentence  must  be  reversed,  and  the  cause  remanded. 
Reversed  and  remanded. 


MozEE  V.  State. 


Texas  Court  of  Crim.  App.— 51  S.  W.  Rep.  250. 

Decided  May  3,  1899. 

AssAVi-T  WITH  Intent  to  Muiinra:   Specific  intent — Self-defense — PrO' 

voking  difficulty. 

1.  Where  the  defendant,  In  order  to  obtain  an  explanation  regarding 

a  statement  made,  seeks  another  and  engages  in  a  conversation, 
in  which  abusive  and  vulgar  language  is  addressed  to  the  defend- 
ant, such  language  is  no  defense  to  the  charge  of  assault  to  mur- 
der, if  in  a  homicide  charge  they  would  not  reduce  the  offense  to 
manslaughter. 

2.  It  Is  not  assault  with  intent  to  murder  to  fire  a  shot  in  the  direction 

of  a  person,  simply  for  the  purpose  of  scaring  him. 

3.  It  is  not  error  to  refuse  an  instruction,  where  the  same  matter  has 

been  amply  covered  in  a  charge  given  by  the  court. 

4.  The  fact  that  a  person  seeks  a  meeting  for  the  purpose  of  provoking 

a  difficulty  does  not  deprive  him  of  the  right  of  self-defense. 


MOZEE  r.  STATE. 


149 


Apppnl  from  the  District  Court  of  Falls  County;  Hon.  S.  R. 
Scott,  Judf^c. 

Wiltz  .Mozcc,  being  convicted  of  an  assault  with  intent  to 
murder,  appeals.    Ileverscd. 


I  'I 


Z.  I.  Harlan,  for  the  appellant. 

llohl.  A.  John,  Asst.  Atty.  Gen.,  for  the  State. 


BuooKs,  J.  Appellant  was  convicted  of  an  assault  with  in- 
tent to  murder,  and  his  punishment  assessed  at  confinement  in 
the  ; cnitentiary  for  a  term  of  two  years;  and  he  appeals. 

In  order  to  understand  the  various  questions  raised  by  ap- 
l>('llant,  it  is  necessary  to  give  a  statement  of  the  evidence. 
Chester  Allen,  the  injured  party,  testified:  That  on  Saturday, 
before  the  trouble,  a  woman  whom  he  was  courting,  named  Ade- 
line Givens,  borrowed  a  horse  from  him  to  ride  to  town,  and 
wanted  witness  to  go  with  her,  but  he  could  not,  and  asked  ajv 
pellant  to  let  her  go  with  him,  to  which  appellant  agi'cod,  an<l 
they  went  to  Marlin  together  on  that  evening.  It  was  late  in 
tbe  night  when  they  got  back,  and  the  next  day  appellant  was 
telling  it  around  that  he  kept  lier  out  in  the  woods  until  that 
time.  Witness  was  boarding  with  appellant  at  the  time,  and 
did  not  like  that,  and  quit  boarding  with  him,  and  moved  into 
a  house  with  Dan  Sanders,  about  three  or  four  hundred  yards 
from  appellant.  The  day  before  the  trouble,  appellant's  wife 
passed  where  >vitness  was  living,  and  asked  witness  why  he  had 
quit  boarding  wiih  them,  and  witness  told  her.  On  Juno  27, 
18!>7,  the  day  of  the  assault,  witness  was  at  home,  and  appel- 
lant's little  girl  came  down  and  told  witness  that  her  fatbor  said 
for  witness  to  come  up  there.  Witness  did  not  tell  her  wbether 
ho  would  come  or  not,  and  the  girl  went  back  home.  Witness 
got  up,  and  went  down  to  water  his  horse  at  a  well  near  by;  and, 
before  he  returned,  appellant,  his  wife,  and  a  woman  that  was 
staying  with  appellant  (l-etsy  Shaw)  were  standing  in  front 
of  witness'  house.  AVitness  went  up,  and  a])pellant  spoke  to  wit- 
ness, and  asked  him  what  he  had  been  telling  his  wife  about 
him  and  Adeline  Givens:  and  witness  started  to  tell  him,  and 
defendant  stopped  him,  and  would  not  permit  him  to  tell  it, 
and  said  he  had  come  down  there  to  kill  witness,  and  was  going 


IV- 

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AMERICAN  CRIMINAL  REPORTS. 


to  do  it,  iiii'l  iimucdiately  pickod  up  a  brickbat,  and  tlimw  it  at 
M-itnt'ss  with  all  liis  power.  Witness  stooped  down  and  picked 
np  a  rod  of  iron  near  by,  and,  Avben  lie  did  so,  Dan  Sand.ers 
spoke  to  witness,  and  said,  "Put  it  down;"  tluit  dofendr.nt  liad 
a  jiistol.  And  witness  looked  around  and  saw  liia  pistol,  and  bo 
and  Dan  Sanders  were  sculHing-  over  it.  Witness  at  once 
dropped  the  iron,  jumped  over  the  woodpile,  ami  ran  in  tbo 
bouse.  A])pellant  either  ^ot  loose  from  Sanders  or  was  turned 
loose,  and  ciiiue  to  the  door  and  repeated  several  times  that  wit- 
ness bad  as  well  come  out ;  that  be  luul  come  to  kill  bim,  and  was 
fidiui;'  to  do  it.  Witness  <><it  an  old  g'un  in  the  bouse  and  camo 
t(j  the  door,  and  presented  it  at  the  defendant  and  snapped  it, 
and  it  failed  to  tire.  Appellant  tln-n  firecl  at  witness  wilb  bis 
Jiistol,  the  ball  striking  the  edge  of  the  door,  near  where  wit- 
ness was  stan<ling.  Appellant  said  to  witness  that  be  knew  the 
old  gun  witness  bad  would  not  fire.  Dan  San<lers  caught  de- 
fendant when  he  lire(l.  Appellant  testified:  "That  on  the  day 
of  the  tro\ible  my  wife  got  after  me  about  what  (.'bester  Allen 
had  been  telling  her  about  me  and  Adeline  (Jivens,  and  said 
that  be  told  her  1  kept  Adeline  (Jivens  out  in  tbo  woods  lb>) 
night  we  went  to  town,  an<l  had  int'rcoiirM'  with  her.  I  told  her 
1  Would  go  to  see  bim  about  it,  and  my  wife,  lletsy  Shaw,  and 
myself  went  down  there;  and  when  we  g^.t  there  1  told  Chester 
Allen  that  1  had  come  to  talk  to  bim  alxnit  what  be  was  telling 
my  wife  alnMit  me  and  Adeline  Givens.  lie  got  imid  and  said: 
'Ves;  you  did  do  it.     You  know  you  did  do  it.     You  know  you 

f d  her.'     1  told  biin  to  hush;  that  I  had  come  down  there 

to  talk  with  him,  and  not  to  have  trouble.  I](>  kept  on,  and 
l)icked  up  a  brickbat  and  threw  it  at  me.  T  picked  up  one  and 
threw  it  at  him.  Jle  then  ]iicke(l  u]»  a  rod  df  iron,  and  Dan 
Sanders  got  him  and  made  bim  lay  it  down.  He  then  ran  in  tbo 
hi. use  and  gnt  a  gun.  T  then  pulled  out  my  pistnl,  ami  l,e 
snapi»ed  the  gun  at  me,  and  I  shot  olf  my  jiistid.  I  did  not  sbool^^ 
at  him,  but  shot  to  scare  bim.  T  did  not  try  to  shoot  bim  any 
more.  I  did  not  have  intercourse  with  Atleline,  and  the  reason 
that  we  were  so  late  was  because  it  rained,  and  we  could  not 
get  home  sooner.  T  di<l  not  say  anything  to  Allen  about  coming 
down  there  to  kill  him."    The  .statements  of  these  two  witnesses 


MOZEE  r.  STATE 


161 


, 


jn'c'sont,  in  substance,  the  testimony  offered  by  the  State  and  the 
defense. 

Appelliint's  first  assignment  of  error  is  "that  the  court  erred 
in  not  giving  tu  the  jury  speeiiil  charges  Xos.  1,  2,  and  3  re- 
quested l)y  liim,  as  shown  by  bill  of  exceptions  JJ^o.  1."  Tlio 
first  charge  is:  "You  are  furtlier  cliarged  that,  if  you  believe 
that  Wiltz  ^Io7-('(^  went  to  the  house  of  Chester  Allen  for  the 
purpose  of  paeifyini;  his  wife;  that,  after  he  got  there,  Chester 
Alien  used  such  language  in  the  presence  of  himself  and  family 
as  was  reasciuably  calculated  and  did  enrage  (h't'endant  to  such 
an  extent  that  he  was  incai)able  of  cool  reflection  at  the  time 
the  shot  was  tirc<l, — you  will  liiul  the  defendant  not  guilty  as 
chiU'gcd."  We  do  not  think  there  is  any  evidence  in  the  record 
riii^^iiig  the  issue  contiiined  in  appellant's  charge.  There  was  no 
insult  to  a  feniidc!  rehitive,  or  about  a  female  relative,  such  as 
w<iuld  reduce  the  killing  from  murder  to  manslunghter ;  and, 
as  appellant  had  gone  down  there  for  the  purpose  of  ascertain- 
ing what  ("hester  Allen  said,  he  certaiidy  couM  not  say  that,  Ix;- 
caiise  he  told  him  what  he  had  heard  him  say,  the  assault  should 
!)('  retliiced  from  assault  with  intent  to  murder  to  aggravated 
assault  by  sheer  force  of  the  fact  that  part  of  the  language!  used 
by  .Mien  in  restating  what  \n'  had  previously  stated  was  vulgar 
and  obscene  language. 

.\ppelhint's  second  recpiested  charge  is  as  follows:  '*Vou  are 
furtlKT  charged,  if  yon  believe  from  the  evidence  that  defend- 
ant shot  at  Chester  .Mien  i'or  the  purpose  of  blulling  or  sc-iiring 
the  witness,  and  not  with  the  specific  intent  to  kill,  you  cannot 
convict  him  of"  the  olTense  cliarged."  We  tliiidv  the  court  should 
have  given  a  charge  |)resenling  the  issue  of  shooting  t(t  scare 
the  injured  party.  If  appellant  shot  to  scan;  Chester  .Mien, 
with  no  intent  to  injnre  him,  but  simply  to  scare,  him,  he  couhl 
not,  under  our  law,  be  guilty  of  an  assault  with  intent  to  mur- 
der. It  is  not  for  lis  to  say  whether  the  facts  proved  this  or 
not.  .\])pellant  had  sworn  posiliv(dy  that  he  ditl  shoot  for  the 
I)urpose  of  scaring  Allen. 

.Vppellant's  third  re(pu>stetl  charge  is  as  follows:  "Vou  are 
further  instructed  by  the  court  that,  before  you  can  convict  de- 
fendant of  the  charge  as  set  out  in  the  indictment,  you  nuist 


ir 


m 

pi: 


JK^ 


AMERICAN  CRIMINAL  REPORXa 


bcliove  that  di  fondant  was  actuated  by  malice,  as  malice  is  de- 
fined in  the  main  charge,  in  committing  the  assault,  if  any." 
We  tliink  this  charge  was  amply  covered  in  the  court's  charge. 

Apiiollant's  seventh  assignment  of  error  is:  "The  court  erred 
in  its  charge  to  the  jury  upon  the  subject  of  'provoking  the  diffi- 
culty,' because  the  issue  was  not  fairiy  raised  upon  the  trial, 
and  was  prejudicial  to  appellant."  Without  discussing  the  evi- 
dence in  detail,  we  believe  that  the  issue  of  provoking  the  diffi- 
culty was  presented,  arising  naturally'  out  of  the  evidence  as 
contained  in  the  record. 

The  eiffhth  assiffument  of  error  is:  "The  court  erred  in  its 
charge  to  the  jury  upon  the  subject  of  provoking  the  difficulty, 
in  that  the  court  failed  to  indicate  from  the  evidence  what  the 
act  of  provocation  is,  and  define  its  effect  and  bearing  upon  the 
casf^,  and  to  explain  to  what  extent  such  act  thus  indicated 
would  limit  or  abridge  defendant's  right  of  self-defense,  but  left 
the  jury  to  speculate  and  conjeeturo  as  to  the  nature  and  qiiality 
of  such  act,  and  the  extent  of  its  limitation  and  abridgment 
of  defendant's  right  of  self-defense  as  is  shown  by  bill  of  ex- 
ceptions." We  have  frequently  held  that,  where  the  evidence 
raises  the  issue  as  to  provoking  the  difiiculty,  it  is  the  duty  of 
the  trial  court  to  tell  the  jury  the  circumstances  indicated  by 
the  evidence  raising  the  issue  of  provoking  the  difficulty.  In 
Ahram  r.  State,  3G  Tex.  Cr.  E.  40,  35  S.  W.  Rep.  300,  the  court 
said :  "The  court  should  have  instructed  the  jury  that  if  they 
believed  from  the  evidence,  l)eyond  a  reasonable  doubt,  that  the 
defendant  and  deceased  were  engaged  in  a  verbal  altercation ; 
that  the  deceased  ordered  him  to  dry  up  or  go  off,  or  else  ho 
wouM  make  him;  that  they  got  into  a  quarrel,  each  party  en- 
gaged in  cursing  the  other;  and  that  the  defendant  with  a  knife, 
being  a  deadly  weapon,  stabbed  deceased  and  killed  him  with 
malice  aforethought, — that  he  would  be  guilly  of  murder,"  etc. 
Upon  referring  t.o  the  court's  charge,  we  find  that  the  court 
charged,  in  substance,  as  follows:  "Unless  you  furtlu^r  believe 
from  the  evidence,  beyond  a  reasonable  doubt,  that  defendant 
sought  the  meeting  with  the  said  Chester  Allen  for  the  ])urposo 
of  provoking  a  difHculty  with  said  Chester  Allen  with  intent 
to  take  the  life  of  the  said  Chester  Allen,  or  do  him  such  serious 
bodily  injury  that  might  probably  end  in  the  death  of  the  said 


CHAVANA  V.  STATE 


153 


Chester  Allen,  and  if  you  so  believe  from  the  evidence  beyond 
a  reasonable  donbt,  then  you  are  instructed  that,  if  the  defend- 
ant sought  such  meeting  for  the  said  purpose  and  with  such 
intent,  tlie  defendant  would  not  be  permitted  to  justify  on  the 
ground  of  self-defense,  oven  though  he  should  thereafter  be  cora- 
i  llud  to  act  in  his  own  self-defense."  We  have  never  hold 
'that  the  mere  fact  that  a  party  sought  a  meeting  for  the  pur- 
pose of  provoking  a  difficulty"  would  deprive  him  of  the  right  of 
self '1i  lWi?<',  but  we  have  uniformly  held  that  the  party  must  not 
only  '0(1^  the  meeting,  but  do  some  act  or  acts  indicating  the  de- 
sire to  bring  on  the  difficulty,  and  thereby  cause  death  or  serious 
bodily  injury  to  his  adveri^:iry.  The  mere  seeking  of  a  party 
fcr  the  purpose  of  bringing  on  a  difficulty,  as  stated,  is  not  the 
gist  of  the  offense,  but  it  is  doing  the  acts  that  produced  or  pro- 
voked the  difficulty  that  deprives  him  of  the  right  of  self-de- 
fense. We  think  the  court's  charge  is  subject  to  the  criticism 
urged  by  the  able  brief  of  appellant's  counsel.  White's  Ann. 
Pen.  Code,  par.  1188;  Id.,  par.  1281,  §  4;  Morgan  v.  Slate,  34 
Tex.  Cr.  Kep.  222,  29  S.  W.  Kep.  1002 ;  Abram  v.  State,  36 
Tex.  Cr.  Rep.  44,  35  S.  W.  Rep.  389 ;  Carter  v.  State,  37  Tex. 
Cr.  Rep.  404,  35  S.  W.  Rep.  378 ;  Winters  v.  State,  37  Tex. 
Cr.  Rep.  582,  40  S.  W.  Rep.  303.  For  the  error  of  the  court  in 
failing  to  give  the  charge  above  commented  upon,  and  the  fur- 
ther error  in  not  properly  defining  what  the  court  meant  by 
"provoking  the  difficulty,"  the  judgment  is  reversed  and  the 
cause  remanded. 


.'1 


CiiAVANA  V.  State. 


Texas  Court  of  Crim.  App.— 51  S.  W.  Rep.  380. 

Decided  May  31,  1899. 

Assault  with  Intent:  Necessity  of  instruction  as  to  grades  of  the 
offense — No  intent  to  destroy  life. 

In  a  trial  upon  an  accusation  of  assault  with  intent  to  commit  mur- 
der, the  evidence  not  showing  any  fixed  malice  or  apparent  de- 
sire to  destroy  life,  but  that  the  defendant  while  Intoxicated,  using 
a  knife,  with  a  blade  one  and  one-half  inches  long.  Inflicted  a 
wound  only  one-half  inch  in  depth,  the  court  should  have  in- 
structed the  Jury  as  to  the  law  relating  to  aggravated  assaults. 


154 


AMERICAX  CRIMINAL  REPORTS. 


Appeal  from  the  District  Coxnt  of  Webb  County. 
Manuel  C'havana,  being  convicted  of  assault  with  intent  to 
connnit  nuirtler,  ajipcals. 

Bohert  A.  Jolin,  Asst.  Atty.  Gen,,  for  the  State. 

Hexdebsox,  J.  Appellant  Avas  convicted  of  an  assault  Avith 
intent  to  murder,  and  his  punishment  assessed  at  confinement 
in  the  penitentiary  for  a  term  of  two  years ;  hence  his  appeal. 

The  only  question  presented  is  an  exception  tal  en  to  the  ac- 
tion of  the  court  in  failing  to  give  a  charge  on  aggravated  as- 
sault. The  circumstances  connected  with  the  assault  are  very 
few.  They  merely  show  that  defendant,  prosecutor,  and  several 
others  were  returning  home  from  a  dance  at  night ;  prosecutor 
and  defendant  both  being  somewhat  under  the  influence  of 
liqur)r.  Defendant  lagged  behind  the  parties  a  short  space,  and 
called  to  prosecutor  to  come  back.  lie  turned  around  and 
stepjied  towards  defendant,  who  immediately  stabbed  him  in  the 
right  breast,  and  then  ran.  The  doctor  states  that  the  wouiul 
was  a  half  to  three-fourths  of  an  inch  in  depth,  and  that  tho 
prosecutor  lost  a  great  deal  of  blood  from  it ;  that  it  Avould  prol)- 
ably  have  been  a  fatal  wound,  if  in  a  different  portion  of  the 
body;  he  was  in  bed  some  eight  days,  suffering  from  the  effects 
of  the  wound.  The  Avitnesscs  describe  the  knife  as  beinc-  a 
pocket-knife,  Avith  a  narrow  Idade,  about  an  inch  and  a  half 
long.  Tho  testimony  of  all  tho  Avitnosses  is  about  to  the  same 
effect.  The  court  instructed  the  jury  that  appellant  nmst  have 
entertained  the  specific  intent  to  take  the  life  of  the  prosecutor, 
before  they  could  convict  him  of  an  assault  Avith  intent  to  mur- 
der, and  further  charged  them,  uidess  they  fouml  that  ho  did 
have  the  specific  intent  to  kill  prosecutor,  to  acquit  him,  but 
failed  to  give  a  charge  on  aggravated  assault.  Under  the  cir- 
cumstances, Ave  believe  the  court  should  have  given  a  charge  on 
aggravated  assault.  There  Avas  no  grudge  shown  betAveen  the 
parties,  and  the  assault  Avas  not  followed  up.  Defendant  ap- 
pears to  have  merely  stuck  the  knife  in  prosecutor  to  the  dci.th 
of  a  half  inch,  when  he  might  have  run  it  in  an  inch  and  a  half, 
and  then  not  only  failed  to  fellow  it  up,  but,  Avithout  inter- 
ference, ran  off.  As  it  Avas,  the  jury  found  him  guilty  of  as- 
sault Avith  intent  to  murder,  and  gave  him  tho  lowest  punish- 


CHAVANA  V.  STATE. 


155 


I    f'l 


iiicnt.  If  the  court  had  given  a  charge  on  aggravated  assault, 
tlio  jury  might  have  found  him  guilty  only  of  that  offense.  AVo 
would  not  be  understood,  however,  as  holding  that  we  would  not 
.sustain  a  verdict  for  an  assault  with  intent  to  murdci*,  but  we  do 
say  that  the  court  should  have  given  an  instruction  on  aggra- 
vated assault.  The  instruction  to  acquit  if  the  jury  found  that 
defendant  did  not  entertain  the  specific  intent  to  kill  was  clearly 
misleading,  because  there  was  no  question  that  the  assault  was 
unlawful.    The  judgment  is  reversed,  and  the  cause  remanded. 

Notes  (by  J.  F.  G.). — Elements  of  the  offense. — Two  essential  ele- 
ments are  necessaiy  to  constitute  assault  with  intent  to  commit  mur- 
der: (1)  The  assault  must  be  committed  with  that  degree  of  malice, 
premeditation,  and  deliberation,  that  if  death  ensues  therefrom,  the 
offense,  if  any,  would  be  murder,  and  not  manslaughter;  (2)  The  as- 
sault must  be  made  with  the  actual  desire  to  destroy  life.  The  object 
of  statutes  of  this  nature  is  not  to  make  felony  of  that  class  of  assaults 
where  the  natural  and  probable  result  would  be  the  death  of  the  per- 
son assaulted;  but  where  the  assault  is  made  with  the  actual  intention 
to  produce  such  results.  If  a  man  taking  deliberate  aim  flres  at  an- 
other with  the  intention  of  wounding  him  in  the  arm,  but  the  bullet 
pierces  the  heart  and  death  ensues,  the  offense  might  be  murder;  be- 
cause, death  l)eing  produced  by  an  unlawful  act,  the  law  presumes 
malice  and  that  the  party  firing  the  shot  intended  the  natural  and  or- 
dinary consequences  of  the  act;  but  if  the  wound  is  made  as  contem- 
plated, and  without  just  excuse,  the  offense  might  be  an  asi  It  with 
Intent  to  commit  a  serious  bodily  injury,  but  not  assault  with  intent  to 
commit  murder,  unless  the  circumstances  indicate  such  intent.  In 
the  Chavaiia  Case  the  fact  that  the  defendant  had  the  present  ability 
to  commit  a  more  serious  injury,  and  did  not,  is  a  very  f.trong  cii<  im- 
stance  indicating  the  absence  of  an  intention  to  destroy  life. 

J'cvicw  of  authorities. — The  authorities  supporting  this  view  of  the 
subject  are  numerous.    But  a  few  of  them  will  here  be  briefly  noted. 

The  case  of  People  i\  Ifobcrts.  19  Mich.  401,  is  a  leading  case  upon 
the  subject  of  specific  criminal  intent  as  applied  to  assault  to  commit 
murder.  In  that  case,  in  reversing  a  conviction,  the  court  said:  "The 
first  question  presented  by  the  record  is  whether,  under  this  informa- 
tion, the  jury  could  properly  find  the  defendant  guilty  of  the  assault 
nith  thejnlent  charged,  without  finding,  as  matter  of  fact,  that  the  de- 
fendant entertained  that  particular  intent?  We  think  the  general  rule 
is  well  settled,  to  which  there  are  few,  if  any.  exceptions,  that  when  a 
statute  makes  an  offense  to  consist  of  an  act  combined  with  a  particu- 
lar intent,  that  intent  is  just  as  necessary  to  be  proved  as  the  a(  t  itself, 
and  must  be  found  by  the  jury,  as  matter  of  fact,  before  a  conviction 
can  be  had.  But  especially,  when  the  offense  created  by  the  statute, 
consisting  of  the  act  and  the  intent,  constitutes,  as  in  the  present  case, 
substantially  an  attempt  to  commit  some  higher  offense  than  that 
which  the,  defendant  has  succeeded   in  accomplishing  by   it;    we  are 


>  I 


Jji 


P. 


I 


\\h 


15G 


AMERICAN  CRIMINAL  REPORTS. 


aware  of  no  well-founded  exceptions  to  the  rule  above  stated.  And  in 
all  such  cases  the  particular  intent  charged  must  be  proved  to  the  sat- 
isfaction of  the  jury;  and  no  intent  in  law,  or  mere  legal  presumption, 
differing  from  the  intent  in  fact,  can  be  allowed  to  supply  the  place  of 
the  latter.  Rex  v.  Thomas,  1  East,  P.  C.  417;  1  Leach,  330;  Rex  v.  Holt, 
7  Car.  &  P.  r.l8;  Cruse's  Case,  8  Car.  &  P.  541;  Reg.  v.  Jones,  9  id.  25S; 
Regina  v.  Ryan,  2  Mood.  &  R.  213;  Rex  v.  Duffln,  Russ.  &  Ry.  364;  Ogle- 
tree  V.  The  atatc.  28  Ala.  693;  Mahcr  v.  The  People,  10  Mich.  212;  Peo- 
ple V.  Scott,  6  Mich.  29G  (per  Campbell,  J.);  Roscoe,  Cr.  Ev.  775,  790;  1 
Bish.  Cr.  L.,  §§  660,  667." 

In  State  v.  y  <il.  37  Me.  468,  the  court  held  that  the  presumption  that 
every  person  intended  the  natural  and  ordinary  consequences  of  his  or 
lier  act  applies  to  cases  of  homicide;  but  where  the  offense  charged 
was  assault  with  intent  to  murder,  "the  intent  charged  which  forms 
the  gist  of  the  offonse  must  be  specially  proved." 

In  Botsch  V.  State.  43  Neb.  501,  61  N.  W.  Rep.  730,  the  court  said: 
"That  a  natural  intent  to  take  life  is  an  essential  element  of  the  crime 
of  assault  with  intent  to  commit  murder  is  the  well-established,  if  not 
imiform,  rule." 

In  Mnore  v.  State,  26  Tex.  App.  332,  the  court  said:  "In  order  to  con- 
stitute the  offense  of  assault  with  intent  to  murder,  two  things  must 
occur:  first,  an  assault;  and  second,  a  specific  intent  to  liill.  Without 
a  simultaneous  concurrence  of  these  two  constituent  elements,  there 
can  be  no  assault  to  murder.  No  intent  save  the  specific  one  to  kill  will 
be  sufficient." 

In  Morgan  v.  State,  33  Ala.  413,  the  court  saiii:  "The  defendant  was 
not  guilty  as  charged,  unless  he  committed  the  assault,  and  this  act 
was  done  with  special  intent  to  kill  and  murder  the  person  assaulted;" 
citing  Ogletree  v.  State,  28  Ala.  693.  In  this  latter  case  the  court  said: 
"If  the  defendant  made  an  unlawful  assault  on  Tiller,  with  malice  and 
with  an  actual  intent  to  murder  him,  he  is  guilty  of  a  felony;  other- 
wise he  is  not  guilty  of  a  felony."  Doth  of  these  cases  were  cited  with 
approval  in  Walls  v.  State,  90  Ala.  618. 

In  Harrison  v.  State,  85  Ga.  131,  11  S.  E.  Rep.  62,  21  Am.  St.  Rep.  152, 
the  court  said:  "Where  death  takes  place  from  unlawful  violence, 
malice  includes  an  intention  to  kill.  Code,  §  4321.  But  where  death 
does  not  take  place,  there  may  be  malice  in  giving  the  wounds,  but 
utter  absence  of  intention  to  kill." 

The  general  term  "assault  with  intent  to  commit  murder"  docs  not 
include  assault  icith  intent  to  commit  manslaughter. — The  following  is 
the  report  in  full  in  Moore  v.  People,  146  111.  600,  35  N.   R.  Rep.  166: 

At  the  November  term,  A.  D.  1892,  of  the  Morgan  county  circuit  court, 
an  indictment  was  returned  into  open  court  of  that  county  by  the  grand 
jury,  charging  the  plaintiff  in  error  with  an  assault  wiih  intent  to 
commit  murder,  and  at  the  same  term  he  was  arraigned,  tried,  and 
convicted,  and  his  punishment  fixed  at  imprisonment  in  the  peniten- 
tiary for  the  term  of  five  years.  A  motion  to  set  aside  the  verdict  and 
for  new  trial  was  entered  at  the  same  term,  which  was  granted,  and 
cause  continued.  At  the  May  term,  A.  D.  1893,  of  the  circuit  court  of 
that  county  the  plaintiff  in  error  was  again  tried  on  the  same  indict- 


,    vl    4 


ClIAVANA  r.  STATE. 


157 


ment  before  a  jury,  and  a  verdict  was  returned  Into  court  finding  the 
defendant  guilty  of  an  assault  witli  intent  to  commit  manslaughter, 
and  fixing  his  punishment  In  the  penitentiary  tor  the  term  of  one  year. 
A  motion  to  set  aside  the  verdict  and  for  a  new  trial  was  entered  by 
the  defendant,  which  was  overruled  by  the  court,  and  thereupon  the  de- 
fendant entered  his  motion  in  arrest  of  judgment,  which  was  also  over- 
ruled, to  which  exception  was  taken,  and  judgment  was  entered  on  the 
verdict,  and  the  defendant  sentenced  to  imprisonment  in  the  peniten- 
tiary for  the  term  of  one  year.  Thereupon  this  writ  of  error  was  sued 
out,  and  the  error  assigned  is  the  overruling  the  motion  in  arrest  of 
judgment,  and  entering  judgment  on  the  verdict  finding  the  defendant 
guilty  of  an  assault  with  intent  to  commit  manslaughter  under  the  in- 
dictment. 

Pmi.i.ip.s,  J.  This  Indictment  was  found  under  the  forty-fifth  section 
of  the  Criminal  Code,  which  provides  that  "an  assault  with  intent  to 
commit  murder,  rape,  mayhem,  robbery,  larceny  or  other  felony  shall 
fiui)joct  the  offender  to  imprisonment  in  the  penitentiary  for  a  term  not 
less  than  one  year  nor  more  than  fourteen  years."  To  constitute  the 
offenses,  or  any  of  them,  as  defined  in  this  statute,  the  intent  must  be 
established;  and,  while  not  necessary  that  that  shall  be  done  by  direct 
evidence,  such  as  threats  and  the  like,  as  it  may  be  inferred  from  the 
facts  and  circumstances  proven,  yet  the  specific  intent  is  necessary  to 
complete  the  offense.  An  assault  with  intent  to  commit  murder,  rape, 
mayhem,  robbery  or  larceny  is  one  which  necessarily  depends  on  de- 
lii)eration,  and,  as  all  these  offenses,  which  are  specifically  named  by 
that  section,  are  those  which  require  deliberation  or  premeditation,  it 
becomes  a  question  of  construction  whether  the  term  "or  other  fel- 
ony" can  include  any  offense  other  than  one  committed  with  delibera- 
tion or  i)remeditation.  When  a  section,  so  far  as  it  particularizes,  has 
reference  entirely  to  offenses  committed  with  a  deliberate  Intent,  gen- 
eral language,  referring  to  any  other  felony  in  like  manner,  has  refer- 
ence to  offenses  committed  with  premeditation  or  deliberate  Intent; 
that  is,  with  what  is  included  as  legal  premeditation  or  deliberation. 
By  section  143  of  the  Criminal  Code  of  this  State  manslaughter  is  de- 
fined as  follows:  "Manslaughter  is  the  unlawful  killing  of  a  human 
being  without  malice,  express  or  implied,  and  without  any  mixture  of 
deliberation  whatever."  To  reduce  the  felonious  killing  of  a  human 
l)eing  from  murder  to  manslaughter  there  must  be  no  Implication  of 
malice  from  facts  and  circumstances  proven,  and  there  must  be  no 
deliberation  whatever.  Where  a  delii)erate  intent  must  be  found  to 
t'xist  to  constitute  the  act  ( liminal,  U  is  impossible  that  it  should  be 
found  to  >''xi3t  without  r<><|pction  or  premeditation.  In  this  case  the  in- 
tent with  vhich  the  assault  was  committed  is  a  necessary  fact  to  be 
shown  or  implied  lo  constitute  the  crime.  When  it  appears  there  was 
an  intent  to  take  life,  either  express  or  implied,  where  the  killing 
would  not  be  excusable  or  justifiable,  and  an  assault  is  made  with  that 
intent,  then  it  would  be  an  assault  with  intent,  to  commit  murder.  It 
would  follow,  therefore,  that  for  one  to  assault  another  with  intent  to 
commit  manslaughter,  would  be  a  contradiction  in  terms.  People  v. 
Lilley,  43  Mich.  521,  5  N.  W.  Rep.  982.     It  was  ?VVP»'  to  overrule  the 


!■ 


ii .'  I 


'1 ; 


158 


AMERICAN  CRIMINAL  REPORTS. 


i 


motion  in  arrest  of  judgment.     The  judgment  is  reversed,  and   the 
oause  is  remanded. 

(The  indictment  was  on  section  23  of  the  Criminal  Code,  which  is 
section  45  in  Starr  &  Curtis'  edition.) 


GicK  V.  State. 
Statk  v.  Slavkxs. 

60  Ohio  St.  485—55  N.  E.  Rep.  48. 

Decided  June  13,  1899. 

Bastardy:  Evidence  of  the  finding  in  a  civil  case. 

On  the  trial  of  the  issues  joined  by  a  plea  of  not  guilty  to  an  in- 
formation or  an  indictment  charging  the  defendant  with  unlaw- 
fully and  negligently  failing  to  support  his  illegitimate  child,  the 
record  of  a  bastardy  proceeding  instituted  by  the  mother  of  the 
child,  in  which  the  defendant  was  adjudged  to  be  its  father,  is 
not  admissible  in  evidence. 
(Syllabus  by  the  Court.) 

In  former  case,  error  to  the  Circuit  Court  of  Cuyahoga 
County. 

In  latter  case,  exceptions  to  decision  of  Common  Pleas  Court 
of  Scioto  County. 

In  the  former  case  Gee  was  convicted  in  the  police  court  of 
the  city  of  Cleveland  upon  an  information  which  charged  him 
with  unlawfully,  negligently  and  wilfully  depriving  his  illegiti- 
mate child  of  necessary  food,  clothing  and  shelter.  Upon  the 
trial  of  the  issues  joined  by  the  plea  of  not  guilty,  the  record  of 
a  civil  proceeding  under  the  bastardy  act  was,  against  the  objec- 
tion of  defendant,  admitted  to  establish  his  paternity  of  tlie 
child  which  was  alleged  to  have  been  neglected  by  him.  The 
sentence  of  the  police  court  was  affirmed  by  the  court  of  common 
pleas  and  the  circuit  court,  and  this  petition  in  error  is  for  the 
reversal  of  the  judgments  of  the  three  courts  for  the  admission 

of  said  evidence. 

« 

T.  J.  Ross,  for  plaintiff  in  error. 

AlheH  T.  Holmes,  for  defendant  in  error. 


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REYiNOLDS  v.  STATE 


150 


In  tlic  socoiul  case  Slnvons  was  placed  on  trial  in  the  connnoii 
picas  court  of  Scioto  county  upon  an  indictment  charging  liini 
with  neglecting  and  refusing  to  support  his  illegitimate  child. 
U])on  the  trial  the  prosecuting  attorney  oflFered  in  evidence  tlie 
record  in  a  proceeding  luiJer  the  bastardy  act  instituted  upon 
the  complaint  of  the  mother,  in  which  Sluvens  was  adjudged  to 
be  the  reputed  father  of  the  child.  This  record  was  excluded 
by  the  court  on  objection  by  the  defendant's  counsel,  and  tho 
prosecuting  attorney  excepted.  The  cause  is  before  us  upon  that 
exception. 

Henry  Bannon,  for  the  State. 
l^uali  J.  Dever,  contra. 

]jy  TiiK  Court.  The  record  offered  is  not  competent  under 
the  general  rule  that  in  a  criminal  proceeding  the  record  of  a 
civil  action  cannot  be  introduced  to  establish  the  facts  on  which 
it  was  rendered.  The  judgments  offered  followed  verdicts 
which  might  have  been  lawfully  returned  upon  a  mere  prepon- 
derance of  evidence.  A  higher  degree  of  evidence  was  required 
to  convict  under  the  indictment  and  the  information.  Greenl. 
on  Ev.,  sec.  437;  Britton  v.  The  State,  77  Ala.  202;  Riher  v. 
Hooper,  35  Vt.  457. 

In  the  former  case  the  judgments  of  the  courts  below  are  re- 
versed.   In  the  latter  the  exception  is  overruled. 

1 


Reynolds  v.  State. 

58  Neb.  49—78  N.  W.  Rep.  483. 

Decided  February  23,  1899. 

Bigamy:  Void  marriage — Covipetency  of  evidence  as  to  death. 

1.  A  married  person  will  not  be  absolved  from  the  bonds  of  matri- 

mony by  believing,  even  upon  information  apparently  reliable, 
that  the  marriage  has  been  dissolved  by  death  or  divorce.  Public 
policy  forbids  that  the  permanence  of  the  marriage  relation 
should  depend  upon  anything  so  precariouf  as  the  mental  state 
of  one  of  the  parties. 

2.  Whether,  in  a  prosecution  for  bigamy,  an  honest  and  reasonably 

grounded  belief  entertained  by  the  defendant  in  the  death  of  an 
absent  spouse  is  of  itself  a  complete  defense,  quare. 


i 


H 


.)  •' 


ICO 


AMERICAN   CRIMINAL  REPORTS. 


8.  In  a  prosecution  for  bigamy  it  is  prejudicial  error  to  permit  the 
State  to  re-enforce  a  disputable  presumption  in  regard  to  the  ca- 
pacity of  one  of  the  parties  to  contract  a  valid  marriage  by  the 
introduction  of  incompetent  evidence  directly  bearing  upon  the 
question. 

4.  To  prove  a  divorce,  the  record  of  the  decree,  or  a  duly  authen- 
ticated copy  thereof,  Is  the  appropriate  and  only  competent  evi- 
dence. 

6.  In  the  absence  of  an  exception,  a  ruling  made  by  the  district  court 
during  the  progress  of  the  trial  cannot  be  reviewed. 

6.  AVhen  a  reputable  presumption,  possessing  no  inherent  probative 
force,  is  met  by  opposing  evidence,  it  is  entirely  destroyed,  and 
ceases  to  be  a  factor  in  the  trial,  unless  it  be  required  to  turn  an 
evenly  balanced  scale. 
(Syllabus  by  the  Court.) 


Error  to  District  Court  of  Hayes  County;  Xorris,  Judge. 
Frederick  D.  Reynolds,  being  convicted  of  bigamy,  brings 
error.     Reversed. 

J.  L.  McPheely  and  E.  F.  Ferns,  for  the  plaintiff  in  error. 
C.  J.  Smyth,  Atty.  Gen.,  and  W.  D.  Oldham,  Dep.  Atty.  Gen., 
for  the  State. 


h    1 

SuLT.TVAx,  J.  The  defendant,  Frederick  D.  Reynolds,  was 
convicted  of  bigamy,  and  sentenced  to  imprisonment  in  the  peni- 
tentiary for  a  term  of  seven  years.  He  was  found  guilty  on  tho 
first  count  of  the  information,  which  charges  a  first  marriago 
with  Jennie  Ford  in  Beaverhead  county,  in  the  State  of  ]\[on- 
tana,  in  February,  1895,  and  a  second  marriage  with  Lizzie  J. 
Caulk,  in  Hayes  county,  Nebraska,  in  July,  1897.  The  sol- 
emnization of  both  marriages,  as  alleged  in  the  information,  was 
shown  by  competent  evidence,  and  was  admitted  by  the  defend- 
ant Avhile  testifying  as  a  witness  in  his  own  behalf.  The  hy- 
pothesis upon  which  the  defense  was  conducted  was  that  tho 
^Montana  marriage  was  void,  for  the  reason  that  both  the  con- 
tracting parties  were  at  the  time  bound  by  prior  matrimonial 
alliances,  and  so  lacking  in  legal  capacity  to  marry,  or  live  in 
lawful  wedlock.  Jennie  Ford,  being  produced  as  a  witness  for 
the  State,  on  cross-examination  gave  testimony  from  which  it 
appears  that  she,  as  well  as  the  defendant,  was  incorrigibly  ad- 
dicted to  matrimony.    She  testified  that  she  married  J.  J.  Jor- 


REYNOLDS  v.  STATE. 


ICl 


don  at  Vinton,  Iowa,  in  1883;  that  alio  married  Frank  Ford  in 
Chicago,  in  1884;  and  that,  at  Dillon,  Montana,  in  Augnat, 
18!)2,  she  waa  wedded  to  Mack  S.  Punnan.  At  the  cf)nclu8ion 
of  the  cross-examination  she  was  dianiissod  by  tlic  State,  but 
was  subsequently  recalled,  and,  over  defendant's  objection,  testi- 
fied that  at  tlie  time  she  married  Reynolds  all  of  his  predecessors 
in  marital  right  wore  dead.  She  also  testified  that  she  had  ob- 
tained a  divorce  from  Purnian  in  1893.  During  the  course 
of  a  further  cross-examination  it  was  developed  that  the  only 
information  the  witness  possessed  in  regard  to  the  death  of  I'ur- 
num  was  derived  from  a  letter  written  to  her  by  some  one  in 
Kansas  City,  whereupon  the  defendant  moved  to  strike  out  the 
testimony.  The  motion  was  denied  for  the  reason  suggested  by 
the  following  remark  of  the  judge  who  presided  at  the  trial : 
"An  honest  belief  of  the  death  of  a  husband  or  a  wife,  together 
with  some  reasonable  ground  for  their  believing  it,  would  be  a 
good  excuse.  1  believe  on  that  ground  it  ought  to  be  overruled." 
The  motion  should  have  been  sustained.  The  mere  reception  of 
the  letter  did  not  render  the  witness  an  eligible  candidate  for 
matrimony.  Neither  reason  nor  authority  sustains  the  position 
of  the  trial  court  upon  this  question.  There  are,  it  is  true, 
cases  which  hold  that  an  honest  belief  in  the  death  of  a  former 
husband  or  wife,  when  such  belief  is  reasonably  grounded,  is  a 
defense  to  a  prosecution  for  bigamy ;  but,  if  the  doctrine  of  these 
cases  is  sound, — which  we  do  not  concede, — it  has  no  applica- 
tion whatever  to  the  facts  of  this  case.  The  witness  was  not  on 
trial.  Her  intent,  whether  criminal  or  innocent,  was  not  in  is- 
sue, and  therefore  her  belief  touching  the  contents  of  the  letter 
was  wholly  immaterial.  A  married  person  cannot  become  ab: 
solved  from  the  bonds  of  matrimony  by  believing,  even  upon  in- 
formation apparently  reliable,  that  the  marriage  has  been  dis- 
solved by  divorce  or  death.  Public  policy  forbids  that  the  per- 
manence of  the  marriage  relation  should  depend  on  anything  so 
precarious  and  elusive  as  the  mental  state  of  one  of  the  parties. 
But  it  is  contended  by  the  attorney-general  that  the  refusal  of 
the  court  to  sustain  the  motion  was  not  prejudicial  error,  be- 
cause the  law  would  presume,  in  favor  of  the  innocence  of  Jen- 
nie F<ird,  that  Purman  was  dead  at  the  time  •she  contracted  the 

marriage  with  Reynolds.     The  better  opinion  seems  to  be  that 
Vou  XI— 11 


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AMERICAN  CRIMINAL  REPORTS. 


there  is  in  such  case  no  absolute  and  inflexible  presumption,  but 
that  the  question  is  to  be  determined  by  the  jury  from  all  the 
facts  in  the  case.  Williams  v.  Williams,  63  Wis.  58,  23  N.  W. 
Rep.  110 ;  Toum  of  Northfield  v.  Town  of  Plymouth,  20  Vt. 
582 ;  Johnson  v.  Johnson,  114  111.  611,  3  K  E.  Rep.  232 ;  Rex 
V.  Inhabitants  of  Harbome,  2  Adol.  &  El.  (Eng.)  540.  But, 
conceding  that  the  presumption  of  innocence  should  be  indulged 
notwithstanding  the  reasonable  and  probable  presumption  of 
life,  it  does  not  follow  that  there  was  not  prejudicial  error  in 
submitting  to  the  jury  the  evidence  against  which  the  motion 
was  directed.  There  was  evidence  in  the  case  that  Purman  was 
seen  alive  and  well  at  Evans,  Colorado,  in  1897.  This  evidence 
destroyed  the  presumption  of  his  death,  and  left  the  question 
for  the  jury  to  determine  upon  a  consideration  of  all  the  facts 
and  circumstances  proven  on  the  trial.  As  applied  to  the  facts 
in  this  record,  the  presumption  was  nothing  more  than  an  arbi- 
trary rule.  It  possessed  no  inherent  probative  force.  Its  value 
depends  upon  law,  and  not  upon  logic.  When  it  met  opposing 
testimony,  it  was  completely  overthrown,  and  ceased  to  be  a 
factor  in  the  trial.  Graves  v.  Colwell,  90  111.  612.  This  being 
so,  it  follows  that  the  court  permitted  the  jury  to  find  that  Pur- 
man was  dead,  and  to  rest  their  finding  upon  the  testimony  of 
Jennie  Ford  with  respect  to  the  contents  of  a  letter  which  was 
neither  produced  nor  accounted  for.  It  cannot  be  said  that  this 
evidence  did  not  exert  a  decisive  influence  upon  the  jury  in 
reaching  their  verdict.  It  was  palpably  incompetent,  and  should 
have  been  rejected.  The  defendant  also  complains  because  Jen- 
nie Ford  was  permitted  to  give  oral  evidence  of  the  fact  that  she 
had  obtained  a  divorce  from  Mack  S.  Purman.  The  evidence 
was  clearly  secondary,  and  its  reception  was  prejudicial  error. 
If  a  divorce  had  been  obtained,  a  duly-authenticated  copy  of  the 
decree  was  the  appropriate  and  only  legal  evidence  of  the  fact. 
Com.  V.  Boyer,  7  Allen,  306;  Slate  v.  Barrow,  31  La-  Ann. 
691 ;  Tice  v.  Reeves,  30  N.  J.  Law,  314 ;  1  Jones,  Ev.  199 ;  4 
Am.  &  Eng.  Ency.  Law  (2d  ed.)  45.  This  evidence  may  have 
influenced  the  jury  to  find  that  Jennie  Ford  possessed  capacity 
to  contract  a  valid  marriage  with  the  defendant.  At  any  rate, 
it  is  impossible  to  say  that  it  did  not  have  that  effect.  Other 
rulings  of  the  trial  court  assigned  for  error  cannot  be  consid- 


j&'S 


PEOPLE  V.  MENDENHALL. 


163 


oivd,  because  in  some  instances  appropriate  objections  were  not 
made,  and  in  others  no  exceptions  were  taken.  The  instructions 
given  seem  to  be  lacking  in  accuracy  of  statement,  while  at  least 
one  of  the  instructions  tendered  by  the  defendant  and  refused 
by  the  court  states  a  correct  principle,  was  applicable  to  the 
facts,  and  should  have  been  given.  But  as  there  was  no  excep- 
tion to  the  instructions,  the  assignments  in  relation  to  them 
cannot  be  considered.  It  has  been  suggested,  and  is  doubtless 
true,  that  in  this  case  "outraged  justice  has  laid  her  avenging 
la?h  on  the  back  of  one  who  honestly  deserves  the  scourge,"  but 
we  cannot  for  that  reason  alone  affirm  the  judgment.  The  juris- 
diction of  the  courts  is  not  co-ordinate  with  that  of  the  mob. 
The  defendant,  by  his  own  confession,  is  an  inveterate  bigamist ; 
but,  notwithstanding  that  fact,  he  is,  under  the  constitution  and 
laws  of  this  State,  entitled  to  a  fair  and  inipartial  trial.  Not- 
withstanding his  odious  character,  he  must,  like  every  other 
person  accused  of  crime,  be  tried  and  convicted  by  due  course 
of  law,  or  else  go  free.  The  judgment  is  reversed,  and  the 
cause  remanded  for  further  proceedings. 


People  v.  MendeniIall. 


119  Mich.  404—78  N.  W.  Rep.  325. 

Decided  February  21,  1899. 
Bioamt:  Common-law  marriage. 
It  is  bigamy  for  a  married  person  to  enter  Into  a  common-law  mar- 
riage, which  otherwise  woiild  be  legal. 

Error  to  Circuit  Court  of  Jackson  County;  Hon.  Erastus 
Peck,  Judge. 

Augustus  C.  Mendenhall,  being  convicted  of  Ibigamy,  brings 
error.    Affirmed. 

John  F.  Ilenigan,  for  plaintiff  in  error. 
H.  M.  Oren,  Atty.  Gen.,  and  Chas.  H.  Smith,  Pros.  Atty.,  for 
the  People. 

Montgomery,  J.  The  respondent  was  convicted  of  the  crime 
of  bigamy.    The  only  substantial  question  raised  is  whether  the 


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offiense  is  committed  by  one  who,  being  married,  contracts  a 
common-law  marriage  lacking  the  formalities  which  the  9tat\ite 
prescribes  for  the  solemnization  of  marriages.  The  testimony 
on  the  part  of  the  People  tended  to  show  that  the  respondent 
and  the  complaining  witness,  Bertha  A.  Poyle,  entered  into  an 
agreement  in  writing  as  follows :  "I,  Augustus  C.  Mendenhall, 
do  hereby  solemnly  agree  to  take  Bertha  A.  Poyle  as  my  wedded 
wife,  to  live  together  in  the  holy  state  of  matrimony,  to  love  her, 
comfort  her,  honor  and  keep  her  in  sickness  and  in  health,  and, 
forsaking  all  others,  keep  her  only,  so  long  as  we  both  do  live. 
I,  Bertha  A.  Poyle,  do  hereby  solemnly  promise  to  take  Au- 
gustus C.  Mendenhall  as  my  wedded  husband,  to  live  together  in 
the  holy  state  of  matrimony,  to  love,  honor,  comfort,  and  keep 
him  in  sickness  and  in  health,  and,  forsaking  all  others,  keep 
him  only  so  long  as  we  both  do  live.  Augustus  C.  Mendenhall. 
Bertha  A.  Poyle."  That  this  agreement  was  signed  in  the 
presence  of  witnesses;  and  that,  acting  on  this  agreement,  the 
parties  immediately  commenced  to  cohabit  as  husband  and  wife, 
and  continued  to  so  cohabit  for  some  weeks,  when  the  complain- 
ing witness  learned  of  the  former  marriage  of  the  respondent. 
The  circuit  judge  charged  the  jury :  "If  yoxi  find  from  the  evi- 
dence, and  beyond  a  reasonable  doubt,  that  Bertha  Poyle  entered 
into  the  contract  in  question  in  good  faith,  for  the  purpose  of  cre- 
ating the  marriage  relation  between  her  and  Mendenhall,  and  not 
for  the  purpose  of  establishing  or  covering  up  unlawful  sexual 
intercourse  between  them,  aijd  that  she  did  this  without  knowl- 
edge or  information  that  Mendenhall  had  a  prior  wife  living, 
from  whom  he  was  not  divorced,  and  that  the  marriage  contract 
so  entered  into  was  followed  by  marital  cohabitation,  submitted 
to  by  her  in  good  faith,  supposing  she  was  his  lawful  wife  by 
virtue  of  such  contract,  then  you  should  regard  the  second  mar- 
riage charged  in  the  information  as  sufficiently  proven ;  other- 
wise, you  should  not."  The  respondent's  counsel  stated  his 
claim  as  follows:  "The  presumption  of  a  valid  marriage  from 
the  circumstances  of  cohabitation  and  the  declaration  of  the 
parties,  Avhile  it  may  be  conclusive  where  there  is  no  impedi- 
ment in  the  way,  yet  we  apprehend  that  where,  as  in  this  case, 
there  is  an  impediment,  to  wit,  a  first  marriage,  and  that  impedi- 
ment is  proven,  what  is  at  most  lewd  and  meretricious  cohabita- 


PEOPLE  V.  MENDENHALL. 


16JS 


tion  cannot,  by  a  humane  presumption  of  the  law,  be  converted 
into  a  predicate  for  the  second  marriage  required  under  the 
statute  of  bigamy."  It  is  a  settled  rule  in  this  State  that  a  mar- 
riage in  fact  may  be  shown  by  proof  of  an  agreement  between 
two  persons  of  opposite  sex  to  take  each  other  presently  as  hus- 
band and  wife,  consummated  by  cohabitation.  Hutchins  v. 
Kimmdl,  31  Mich.  12G,  118  Am.  Rep.  1G4;  Clancy  v.  Clancy, 
06  Mich.  202,  33  K  W.  889 ;  People  v.  Loomis,  lOG  Mich.  250, 
64  X.  W.  Rep.  18.  It  follows  that  such  infonnal  agi'eemont 
constitutes  a  marrying,  within  the  meaning  of  section  9280,  2 
How.  Ann.  St.  It  is  none  the  less  a  marrying  because  one 
spouse  is  already  married.  It  is  true  of  every  case  of  a  big- 
amous marriage  that  the  second  marriage  is  void;  and,  as  was 
said  in  People  v.  Brown,  34  Mich.  339,  it  is  the  entering  into  a 
void  marriage  while  a  valid  marriage  exists  which  the  statute 
punishes.  In  Bish.  St.  Crimes,  §  592,  it  is  said,  "In  a  State 
where  mutual  consent  alone  constitutes  matrimony,  as  with  the 
first  marriage,  so  with  the  second, — ^no  added  formalities  need 
be  shown."  See  also  Hayes  v.  People,  25  H^.  Y.  390.  The  con- 
viction is  affirmed.    The  other  justices  concurred. 

Note. — Proof  of  common-law  marriage. — In  Hiler  v.  People,  156  111. 
511,  41  N.  E.  Rep.  181,  a  prosecution  for  bigamy  was  based  on  the 
theory  that  the  llrst  alleged  marriage  was  a  common-law  marriage. 
In  < -^versing  the  conviction,  the  court  said: 

"To  constitute  the  offense  charged  in  this  Indictment  it  is  Incum- 
bent upon  the  prosecution  to  show  against  the  defendant  two  suc- 
cessive marriages;  one  legal  and  innocent,  the  other  penal.  Both  must 
be  actual.  The  first  marriage  must  be  valid  and  binding,  and  a  mar- 
riage in  fact.  Marriage  with  capacity  and  consent,  proved  by  direct 
testimony,  as  by  the  evidence  of  witnesses  who  saw  and  heard  the 
marriage  celebration  performed  between  the  parties,  or  record  evidence, 
with  identification,  would  be  evidence  of  actual  marriage  in  fact. 
Under  the  decisions  of  this  court,  a  marriage  legal  at  common  law  la 
recognized  as  valid  and  binding  in  this  State.  What  constitutes  such 
common-law  marriages  legal  and  valid  has  been  recognized  by  repeated 
adjudications.  To  constitute  a  marriage  legal  at  common  law,  the  com- 
tract  and  consent  must  be  per  verba  de  pr(rsenH.  Or,  If  made  per 
verba  de  futuro  cum  copula,  the  copula  Is  presumed  to  have  been  al- 
lowed on  the  faith  of  the  marriage  promise,  and  that  as  the  parties  at 
the  time  of  the  copula  accepted  of  each  other  as  man  and  wife.  Port 
V.  Port,  70  111.  484;  Hebblethwaite  v.  Hopworth,  98  111.  126;  Cartwright 
V.  McOown,  121  111.  388,  12  N.  E.  Rep.  737.  Under  the  evidence  in  this 
record  it  is  not  shown  that  any  marriage  ceremony  was  performed. 
No  actual  marriage  in  fact  is  proven  between  the  defendant  and  Lizzie 


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AMERICAN  CRIMINAL  REPORTS. 


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Myers.  The  evidence  discloses  the  fact  that  the  defendant  and  one 
Lizzie  Myers  lived  together  as  husband  and  wife,  etc.,  spoke  of  and 
introduced  each  other  to  others,  and  letters  from  the  defendant  to  her 
so  designated  her  as  his  wife.  They  were  by  repute  husband  and  wife 
during  this  cohabitation.  On  many  questions,  cohabitation  and  repute 
are  adequate  evidence  from  which  marriage  is  presumed.  For  the  de- 
termination of  many  cases,  declarations,  whether  verbal  or  In  writing, 
with  evidence  of  cohabitation  and  repute,  are  adequate  evidence  of 
marriage.  The  manner  in  which  persons  living  together  as  husband 
and  wife  are  received  among  their  fr<ends  and  neighbors  as  being  mar- 
ried, their  reputation  and  declarations,  most  commonly  spring  from  the 
fact  of  cohabitation.  As  expressed  by  Mr.  Bishop  in  his  work  on  Mar- 
riage, Divorce  and  Separation  (vol.  1,  §  939),  they  'are  shadows  attend- 
ing on  cohabitation,  and  they  should  be  simultaneous  therewith.'  On 
the  trial  of  any  issue  involving  the  question  of  marriage  all  these 
shadows  of  and  resulting  from  cohabitation  may  be  introduced  in  evi- 
dence. From  the  fact  of  cohabitation,  with  the  attendant  shadows, 
for  many  purposes  there  follows  the  presumption  of  marfiage.  This 
presumption  increases  through  the  lapse  of  time  through  which  the 
parties  are  cohabiting  as  husband  and  wife.  In  this  record,  there  is 
no  actual  marriage  in  fact  proven,  no  proof  of  a  contract  per  verba  de 
prwsenti;  nor  is  there  any  evidence  per  verba  de  futuro  cum  copula. 
In  the  absence  of  such  evidence,  there  remains  in  this  record  only  evi- 
dence of  cohabitfitlon  with  its  attendant  shadows,  from  which  springs 
a  presumption  of  marriage.  The  marriage  to  Grace  Washburn  as  an 
actual  marriage  in  fact  is  shown.  Cohabitation  and  its  attendant 
shadows  are  shown.  Two  cohabitations  are  proven  from  the  evidence, 
from  the  first  of  which  a  marriage  of  the  defendant  to  Lizzie  Myers 
would  be  presumed,  and  from  the  second  of  which  the  marriage  of 
the  defendant  vo  Grace  Washburn  would  be  presumed;  and  in  the  ab- 
sence of  proof  of  a  contract  per  verba  de  prwsenti,  each  -esumption 
is  similar;  the  first  establishing  a  marriage,  the  second  dib.  iving  the 
presumption  of  such  first  marriage.  Where  a  marriage  legal  at  com- 
mon law  is  sought  to  be  shown  on  which  to  base  a  conviction  for  big- 
amy, all  the  elements  necessary  to  constitute  such  common-law  mar- 
riage must  be  proven.  There  must  be  evidence  of  a  contract  per  verba 
de  prwsenti,  with  proof  of  cohabitation.  In  prosecutions  for  bigamy 
direct  proof  of  the  fact  of  marriage  is  required.  Harman  v.  Harman, 
16  111.  85.  Where  proof  of  marriage  legal  at  common  law  is  sought  to 
be  shown,  it  must  be  absolute  proof  of  marriage.  Hayes  v.  People,  25 
N.  Y.  390." 


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REGINA  V.  HISTED.  167 

Eeoina  v.  Histed. 

19  Cox'8  Crim.  Cases,  16  (1898). 

Bigaht:  Admissions:  lUethods  of  obtaining  them. 

"..  Prisoners  must  be  dealt  with  fairly.    The  police  have  no  right  to 
put  questions  to  entrap  them  into  making  admissions. 

2.  They  should  ask  no  questions  of  a  prisoner  without  first  giving  him 

the  usual  caution. 

3.  If  these  principles  are  ignored,  the  court  should  exclude  the  ad- 

missions. 

This  was  a  case  tried  before  Sir  Henry  Hawkins  at  Lewes, 
at  the  Summer  Assizes  in  1898. 

The  prisoner,  Jane  Elizabeth  Histed,  was  charged  with  big- 
amy. 

Chambers,  Q.  C,  prosecuted,  and  at  the  request  of  the  judge 
Harvey  Murphy  defended. 

The  evidence  against  ihe  prisoner  was  as  follows : 

The  Rev.  Thomas  Cnbb,  vicar  of  Stockbury,  in  Kent,  pro- 
duced his  register  of  marriages,  which  contained  an  entry  of  the 
marriage  of  one  Charles  Histed  to  Jane  Elizabeth  Allen  on  the 
4tli  day  of  September,  1886.  He  failed  to  identify  either  of  the 
parties  as  the  parties  he  had  married,  and  it  appeared  by  the 
depositions  that  the  answer  the  witness  had  made  before  the 
committing  magistrates  was  this:  "I  cannot  recognize  either 
of  the  parties  now."  Prior  to  giving  this  answer  he  had  been 
taken  by  the  police  to  the  police  station  to  look  at  the  prisoner. 

Leonard  Parker,  an  Eastbourne  detective,  said  that  on  the 
23d  day  of  February  he  took  the  prisoner  into  custody  in  Kent. 
He  read  the  warrant  to  her.  She  corrected  the  date  of  the  9th 
day  of  September  which  appeared  on  the  warrant  to  the  4th  day 
of  September.  (This  statement  did  not  appear  in  the  deposi- 
tions.) He  then  cautioned  her.  She  made  no  further  reply, 
and  he  took  her  to  Eastbourne.  On  the  following  day  (the  24th 
day  of  February)  the  prisoner  was  brought  before  the  magis- 
trates and  remanded  till  the  4th  day  of  March.  On  that  date 
witness  went  to  the  police  station  with  the  last  witness,  and  took 
him  to  the  charge  room  to  see  the  prisoner,  who  was  called  from 
the  cell.  Pointing  out  the  Rev.  Mr.  Cobb,  the  detective  salv  to 
the  woman,  "Do  you  know  this  gentleman  ?"    The  answer  which 


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AMERICAN  CRIMINAL  REPORTa 


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appeared  upon  the  depositions  was  as  follows:  "Yes,  you  are. 
the  Mr.  Cobb  who  married  me  and  Charles  Ilisted  at  Stock- 
bury  Church  on  the  4th  day  of  September,  1886.  James  Bing 
was  one  witness,  and  a  police  constable  was  there  named  Reeves 
or  Eecd." 

By  his  Lordship:  Q.  Did  you  caution  the  woman?  A.  Xo, 
my  Lord.  Q.  What  was  the  object  of  the  question  ? .  A.  It  was 
simply  a  remark.  Q.  Do  you  really  mean  to  tell  me  that  ? 
A.  Yes. 

Murphy,  on  behalf  of  the  prisoner,  siibmittod  that  a  state- 
ment obtained  in  this  manner  was  not  admissible  evidence. 

Chambers,  Q.  C,  in  reply. 

Hawkins,  J.  I  shall  not  allow  this  question  to  be  put.  It 
is  a  matter  on  which  I  hold  a. strong  opinion.  'Eo  one,  either 
policeman  or  anyone  else,  has  a  right  to  put  questions  to  a  pris- 
oner for  the  purpose  of  entrapping  him  into  making  admissions. 
A  prisoner  must  be  fairly  dealt  with.  In  this  ease  no  caution 
was  given  by  the  detective.  The  fact  was,  that  to  the  knowledge 
of  the  detective  there  was  no  evidence  of  identity  against  the 
prisoner.  Mr.  Cobb  failed  to  recognize  her,  and  so,  by  a  trick, 
he  endeavored  to  set  the  case  on  its  legs  again  out  of  her  own 
mouth.  This  cannot  be  permitted.  In  my  opinion,  when  a 
prisoner  is  once  taken  into  custody,  a  policeman  should  ask  no 
questions  at  all  without  administering  previously  the  usual  cau- 
tion. 

There  being  no  evidence  of  identity,  prisoner  was  discharged, 


Note  (by  J.  F.  G.).— The  editor  of  Cox's  Criminal  Cases  In  a  foot 
note  says  that  subsequent  to  the  above  decision  Judge  Hawkins'  at 
tention  was  brought  to  the  cases  of  Regina  v.  Gavin,  IB  Cox,  C.  C.  656, 
and  Reg.  v.  Brackenbury.  17  Cox,  C.  C.  628,  and  that  he  said:  "i  en 
tlrely  agree  with  the  ruling  of  Smith,  J.,  in  Reg,  v.  Gavin.  Cross- 
examination  of  a  prisoner  by  a  policeman  should  not  be  permitted, 
and  In  my  discretion  I  should  exclude  evidence  obtained  in  that  way 
The  case  I  have  just  tried  shows  exactly  the  danger  of  allowing  such 
evidence  to  be  given." 

The  report  in  the  Gavin  Case  is  brief,  but  instructive,  and  we  give  It 
below  in  full: 

Reo.  v.  Gavin  and  Others. 

The  prisoner  Gavin  and  three  others  were  indicted  for  stealing  two 
barrels  of  oysters  from  the  Lime-street  station  of  the  London  and 


LOWERY  V.  PEOPLE. 


1G9 


North-Western  Railway  Company,  at  Liverpool,  on  the  4th  day  of 
April,  1886.  A  number  of  barrels  of  oysters  had  been  sent  to  the  sta- 
tion by  the  importers  of  them  in  order  that  they  might  be  sent  off  to 
different  parts  of  the  country;  and  the  prisoners,  knowing  this,  had 
taken  a  cart  from  a  public  stand,  driven  to  the  station,  and  there,  on 
the  assertion  that  they  had  been  sent  by  the  owners  of  the  oysters  to 
take  delivery  of  two  barrels,  they  obtained  the  oysters  which  formed 
the  subject  of  this  Indictment,  and  then  sold  them. 

The  prisoner  Gavin  on  being  taken  into  custody  and  charged  witli 
the  robbery  denied  all  knowledge  of  it,  but  subsequently  at  the  de- 
tective ofHce  he  made  a  statement  to  the  police  officer  in  which  he 
admitted  his  own  guilt  and  incriminated  "ihe  other  prisoners.  The 
other  prisoners  when  apprehended  at  first  denied  all  knowledge  of 
the  offense  charged;  but  afterwards  at  the  detective  office,  when  con- 
fronted with  Gavin,  and  his  statement  read  over  to  them  by  the  police 
officer,  they  said,  "Yes,  that's  all  right." 

At  the  trial  Gavin  pleaded  guilty,  and  on  the  part  of  the  prosecu- 
tion— 

Segar  proposed  to  put  in  Gavin's  statement  as  evidence  against  the 
other  prisoners. 

Smith,  J.,  stopped  him,  and  said:  When  a  prisoner  is  in  custody  the 
police  have  no  right  to  ask  him  questions.  Reading  a  statement  over, 
and  then  saying  to  him,  "What  have  you  to  say?"  is  cross-examining 
the  prisoner,  and  therefore  I  shut  it  out.  A  prisoner's  mouth  is  closed 
after  he  is  once  given  in  charge,  and  he  ought  not  to  be  asked  any- 
thing. A  constable  has  no  more  right  to  ask  a  question  than  a  judge 
to  cross-examine — for  it  is  practically  a  cross-examination — nor  can  he 

say  " said  that,  what  do  you  say  to  it?"  for  that  is  in  the  nature 

of  a  cross-examination.  Before  the  prisoner  is  charged  or  is  in  cus- 
tody he  may  be  asked  what  he  has  to  say  in  explanation  or  in  answer 
to  the  charge. 

Solicitor  for  the  prosecution,  Atkinson,  Town  Hall,  Liverpool. 


!i 


LowERY  V.  People. 

172  111.  466—50  N.  E.  Rep.  165. 

Opinion  filed  April  21.  1898. 

Bioaht:  Proof — Alleged  second  wife  not  a  competent  witness. 

1.  In  prosecutions  for  bigamy  both  marriages  must  he  proved. — Where 

the  relation  of  husband  and  wife  has  been  assumed,  the  law  gen- 
erally presumes  a  lawful  marriage;  but  where  two  successive 
marriages  are  charged  in  a  prosecution  for  bigamy,  the  presump- 
tion In  favor  of  the  legality  of  each  is  equal,  and  an  actual  first 
marriage  must  be  proved. 

2.  Proof  of  marriage  need  not  be  by  the  register  or  certificate. — In 

prosecutions  for  bigamy  It  is  not  necessary  to  prove  either  of  the 


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AMERICAN  CRIMINAL  REPORTS. 


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alleged  marriages  by  the  register  or  certificate  or  other  record 
evidence,  but  the  same  may  be  proved  by  such  evidence  as  Is  ad- 
mlBsible  to  prove  a  marriage  In  otner  cases. 
8.  Mere  proof  of  cohabitation  and  reputation  does  not  eatabliah  mar- 
flage^—ln  prosecutions  for  bigamy,  mere  proof  of  cohabitation 
and  reputation  as  husband  and  wife  Is  not  sufficient  to  establish 
an  alleged  former  marriage.  In  the  absence  of  any  admission  by 
the  defendant  of  the  fact  of  such  marriage. 

4.  Alleged  second  wife  cannot  testify  if  first  marriage  is  denied.— An 

alleged  second  wife,  whose  marriage  with  the  defendant  charged 
with  bigamy  Is  not  controverted,  is  not  competent  to  testify  as 
to  admissions  by  the  defendant  concerning  the  existence  of  tho 
first  marriage,  where  that  Is  the  only  controverted  question  of 
fact. 

5.  Extent  to  which  alleged  second  wife  is  competent  as  a  witness. — 

In  a  prosecution  for  bigamy.  If  the  first  marriage  Is  clearly  proved 
and  not  controverted,  the  alleged  second  wife  is  competent  to  tes- 
tify as  to  the  second  marriage,  but  not  the  first,  and  she  is  not 
competent  at  all  If  the  fact  of  the  first  marriage  Is  controverted. 

Writ  of  error  to  the  Criminal  Coiirt  of  Cook  County;  the 
Hon.  Frank  Baker,  Judge,  presiding. 

Hillis  &  McCoy  and  Doiigald  Muir,  for  plaintiff  in  error. 

In  prosecutions  for  bigamy  both  marriages  must  be  proved  as 
alleged.  3  Greenl.  on  Ev.,  sec.  204;  Hiler  v.  People,  156  111. 
511 ;  People  v.  Lambert,  5  Mich.  349. 

In  prosecutions  for  bigamy  a  marriage  in  fact  must  be  proven. 
Hiler  v.  People,  156  111.  511 ;  Case  v.  Cose,  17  Cal.  598 ;  People 
V.  Lambert,  5  Mich.  349;  People  v.  Humphrey,  7  Johns.  314; 
Gahagan  v.  People,  1  Park.  Cr.  378 ;  Hamian  v.  Harman,  16 
111.  88 ;  Mimr  v.  People,  58  id.  60 ;  Miller  v.  White,  80  id.  585 ; 
Keppler  v.  Elser,  23  111.  App.  643;  Cartwright  v.  McGowan, 
121  111.  406;  2  Wharton  on  Crim.  Law,  sec.  1696;  3  Greenl.  on 
Ev.,  sec.  204;  State  v.  Roswell,  6  Conn.  488;  Commonwealth  v. 
Littlejohn,  15  Mass.  162. 

The  first  marriage  alleged  cannot  be  proved  by  the  confes- 
sions or  admissions  of  the  defendant,  though  supported  by  proof 
of  cohabitation  and  reputation.  Hiler  v.  People,  156  111.  519 ; 
People  V,  Lambert,  5  Mich.  349 ;  Gahagan  v.  People,  1  Park. 
Cr.  378;  Stephen's  Digest,  p.  Ill,  art.  53;  3  Greenl.  on  Ev., 
sec.  204,  note  4;  2  id.,  sec.  461;  Case  v.  Case,  17  Cal.  598; 
Hayes  v.  People,  25  K  Y.  390 ;  Commonwealth  v.  Littlejohn, 
15  Mass.  163;  Hutchins  v.  Kimmel,  31  Mich.  126;  State  v. 


glV( 

her 


LOWERY  V.  PEOPLE. 


171 


Roswell,  6  Conn.  44G ;  Keppler  v.  Elser,  23  111.  App.  C43 ;  Dann 
v.  Kingdom,  1  T.  &  C.  492 ;  3  Stark,  on  Ev.,  893 ;  2  id.  781 ; 
1  Russell  on  Crimes,  186,  note,  217,  218 ;  Morris  v.  Miller,  2 
Burr.  2056;  Regina  v.  Flaherty,  2  C.  &  K.  781. 

In  prosecutions  for  bigamy  the  alleged  second  wife  should  not 
be  admitted  to  testify  if  the  alleged  first  marriage  is  contro- 
verted or  is  not  clearly  proven.  Greenl.  on  Ev.,  sec.  339 ;  1  id., 
see.  20G,  and  cases  cited ;  Miles  v.  United  States,  103  U.  S.  313 ; 
1  Russell  on  Crimes,  218. 

The  testimony  of  the  second  wife  to  prove  the  only  contro- 
verted issue  in  the  case,  namely,  the  first  marriage,  cannot  be 
given  to  the  jury  on  the  pretext  that  its  purpose  is  to  establish 
her  competency. 

E.  C.  Akin,  Attorney-General,  Charles  8.  Deneen,  State's 
Attorney,  and  Harry  Olson,  Assistant,  for  the  People. 

A  prior  marriage  may  be  proved  by  the  admissions  of  the  ac- 
cused without  the  production  of  the  record  of  a  witness  present 
at  the  marriage.  The  rule  has  more  frequently,  however,  been 
stated  as  being  to  the  effect  that  declarations  or  admissions  of 
the  accused  as  to  the  prior  marriage  and  proof  of  cohabitation 
are  sufficient  evidence  thereof.  Oneale  v.  Commonwealth,  17 
Gratt.  583;  State  v.  Johnson,  12  Minn.  476;  State  v.  Arming- 
ton,  25  id.  29;  Commonwealth  v.  Ilayden,  163  Mass.  453; 
Squire  r.  State,  46  Ind.  459;  Crane  v.  State,  94  Tenn.  86; 
Parker  v.  State,  77  Ala.  47 ;  Slate  v.  Wylde,  110  N.  C.  500 ; 
liegina  v.  Flaherty,  2  C.  &  K.  782;  United  States  v.  Miles,  2 
Utah,  19,  103  U.  S.  304;  Rex  v.  Truman,  1  East's  P.  C.  470; 
Williams  v.  State,  54  Ala.  131 ;  State  v.  Plym,  43  Minn.  385 ; 
Wolverton  v.  State,  16  Ohio,  172;  State  v.  Hilton,  3  Rich.  434; 
State  V.  Britton,  4  McCord,  256 ;  Warner  v.  Commonwealth,  2 
Va.  Cas.  95;  Langtry  v.  State,  30  Ala.  536;  State  v.  Seals,  16 
Ind.  352 ;  Commonwealth  v.  Mxirtagh,  1  Ashm.  272 ;  Halhrook 
V.  State,  34  Ark.  511;  Commonwealth  v.  Jackson,  11  Bush, 
679 ;  State  v.  Roswell,  6  Conn.  446 ;  People  v.  Humphrey,  7 
Johns.  314. 

Mr.  Justice  Cabtwkight  delivered  the  opinion  of  the  court. 
Plaintiif  in  error  was  convicted  in  the  criminal  coiirt  of  Cook 
county  of  the  crime  of  bigamy,  upon  an  indictment  charging 


ir 
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M 

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I 


li 


S':'-' 


179 


AMERICAN  CRIMINAL  REPORTS^ 


that  ho  was  lawfully  married  on  June  23,  1892,  to  Clara  E. 
Squior  at  Alihvaukee,  in  the  State  of  Wisconsin,  and  that  after- 
wards, on  February  14, 185)0,  at  Cohunbus,  in  the  State  of  Ohio, 
he  unlawfully  married  Annie  May  Quinnoll. 

At  the  trial  the  second  marriage  with  Annie  May  Quinnoll, 
and  the  fact  that  defendant  resided  with  her  as  his  wife  in 
Cook  county,  Illinois,  from  March,  189G,  to  Jun  •,  1897,  wore 
conclusively  proved  and  not  controverted.  The  evidence  as  to 
the  fii-st  marriage  consisted  of  testimony  that  defendant  and  the 
alleged  first  wife  lived  together  as  husband  and  wife  in  Chicago 
previous  to  the  second  marriage,  and  while  so  living  together 
he  called  her  his  wife,  and  said  that  they  had  been  married  in 
Milwaukee,  Wisconsin,  and  showed  what  purported  to  be  a  mar- 
riage certificate.  Defendant,  claiming  that  evidence  of  that 
kind  was  insufficient  to  convict  him,  asked  the  court  to  give  the 
jury  tlie  following  instruction : 

"The  jury  are  instructed  that  the  defendant  cannot  be  con- 
victed of  the  crime  charged  where  the  only  evidence  of  the  first 
marriage  charged  is  proof  of  cohabitation  of  the  defendant  and 
the  alleged  first  wife  as  man  and  wife,  and  that  they  had  stated 
that  such  marriage  had  taken  place." 

Where  the  relation  of  husband  and  wife  has  been  assumed  the 
law  generally  presumes  in  favor  of  a  lawful  marriage;  but 
where  it  is  charged  that  two  successive  marriages  have  taken 
place  the  presumption  in  favor  of  the  legality  of  each  is  equal, 
and  an  actual  marriage  must  be  proved.  In  this  case,  the  pre- 
sumption that  would  ordinarily  obtain  in  favor  of  the  first  mar- 
riage is  met  by  an  equal  presumption  in  favor  of  the  legality 
of  the  second  marriage,  and  therefore  it  was  incumbent  on  the 
prosecution  to  show  the  first  marriage  to  be  a  marriage  in  fact. 
This  proof  of  an  actual  marriage  may  be  made,  however,  as  of 
any  other  fact.  Our  statute  provides  that  it  shall  not  bo  neces- 
sary to  prove  either  of  the  marriages  by  the  register  or  certificate 
or  other  record  evidence,  but  the  same  may  be  proved  by  such 
evidence  as  is  admissible  to  prove  a  marriage  in  other  cases. 
Rev.  Stat.,  sec.  29,  ch.  38.  In  Jackson  v.  People,  2  Scam.  231, 
it  was  said  that  the  object  of  this  statute  was  to  let  in  an  in- 
ferior grade  of  evidence,  and  that  it  was  discretionary  with  the 
State's  Attorney  as  to  the  kind  of  evidence  he  would  use.    It  has 


ym 


LOWEBY  t'.  PEOPLE. 


173 


been  held  in  some  caso8  that  admissions  of  the  defendant  of  a 
jnnrriago  in  fact,  thougii  supported  by  proof  of  cohabitation  and 
reputation  as  husband  and  •wife,  arc  not  sufficient  to  prove  the 
fact'  of  marriage,  but  the  great  weight  of  autliority  is  adverse 
to  that  position.  We  can  see  no  reason  why  an  admission  or 
declaration  of  the  defendant  of  the  fact  of  his  marriage  should 
not  rest  on  the  same  footing  as  an  admission  of  other  facts  ea- 
sentinl  to  establish  his  guilt.  There  can  bo  no  rcnmni  for  dis- 
criminating in  such  a  case,  and  exempting  one  l.ict  from  the 
rules  of  evidciiLe  applicable  to  others.  The  statement  of  t'le  de- 
fend;! nt  may  be  as  conclusive  and  satisfactory  as  any  fither  proof 
of  his  marriage,  and  as  to  that  question  the  jury  is  to  determine. 
The  fact  need  not  be  proved  by  direct  evidence,  hnt  may  be  es- 
tablished, like  .iny  other  fact,  by  admissions  of  the  defendant. 
Miles  V.  Untied  Slates,  103  U.  S.  30-i;  licfjiim  v.  Simmonsto, 
1  Car.  &  Kir.  1G4;  Wolvcrton  v.  Stale,  10  Ohio,  173;  Oneale 
V.  Commonwealth,  17  Gratt.  583;  Williams  v.  Slate,  54  Ala. 
131;  llalhrooh  v.  Stale,  34  Ark.  511;  Commonwealth  v.  Jack- 
son, 11  IJush,  079;  Squire  v.  State,  40  Ind.  459;  Dale  v.  State, 
88  Ga.  552;  Commonwealth  v.  llaydcn,  103  Mass.  453.  In 
Tucker  v.  People,  117  111.  88,  the  admission  of  the  defendant 
was  deemed  competent  evidence  so  far  as  it  went,  but  it  was  not 
sufficient  to  prove  the  charge  in  the  indictment,  and  in  Hiler 
V.  People,  150  111.  511,  the  evidence  was  simply  of  cohabitation 
and  reputation  as  man  and  wife,  without  any  admission  of  a 
marriage  in  fact,  and  it  was  held  that  such  a  marriage  had  not 
been  proved.  It  is  always  held  in  prosecutions  for  bigamy,  that 
the  marriage  cannot  be  proved  by  cohabitation  and  reputation 
merely,  for  the  reason  already  given,  but  it  may  be  proved  by 
the  kind  of  evidence  in  question  here  if  sufficient  to  establish  the 
fact,  and  it  was  not  error  to  refuse  the  instruction. 

The  second  wife,  Annie  May  Quinnell,  whose  marriage  with 
defendant  was  proved  and  not  controverted,  was  allowed  to 
testify  against  the  objection  of  defendant,  and  gave  evidence 
tending  to  establish  the  fact  of  the  first  marriage  with  Clara 
E.  Squier.  She  testified  that  defendant  told  her,  after  they 
were  married,  that  he  and  the  alleged  first  wife  went  to  some 
town  a  short  distance  from-  Chicago  and  went  through  some 
marriage  ceremony.    Greenleaf  lays  down  the  rule  that  if  the 


i 


iiii 


174 


AMERICAN  CRIMINAL  REPORTS. 


I  ■'■?■:■'■■  I  ^ 


■'(■■1:i:'"i- 


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first  marriage  is  clearly  proved  and  not  controverted,  then  the 
person  with  whom  the  second  marriage  was  had  may  be  ad- 
mitted as  a  witness  to  prove  the  second  marriage,  as  well  as  other 
facts  not  tending  to  defeat  the  first  or  to  legalize  the  second,  but 
that  she  ought  not  to  be  admitted  at  all  if  the  first  marriage 
is  still  a  point  in  controversy.  3  Greenl.  on  Ev.,  sec.  206.  In 
Miles  V.  United  States,  supra,  it  is  said  that  it  is  only  in  cases 
where  the  first  marriage  is  not  controverted,  or  has  been  duly 
established  by  other  evidence,  that  the  second  wife  is  allowed 
to  testify;  that  she  is  never  comi.ci.ent  to  prove  the  first  mar- 
riage, for  she  cannot  be  admitted  to  prove  a  fact  to  the  jury 
which  must  be  established  before  she  can  testify  at  all,  and  that 
in  cases  where  she  can  testify  she  may  be  a  witness  to  the  second 
marriage,  but  not  to  the  first.  The  same  rule  is  laid  down  in 
4  Am.  &  Eng.  Ency.  of  Law  (2d  ed.),  47.  In  this  case  the  only 
controverted  question  is  the  fact  of  the  first  marriage,  and  the 
court  clearly  erred  in  allowing  Annie  May  Quinnell  to  testify 
as  a  witness.    For  this  error  the  judgment  must  be  reversed. 

The  judgment  is  accordingly  reversed  and  the  cause  re- 
manded.   Reversed  and  remanded. 


/ , 


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,1  ^'^'. 


Notes  (by  H.  C.  O.). — ^An  important  question  is  here  suggested: 
Can  the  second  wife  of  defendant  ot.  trial  for  bigamy  testify  under 
any  circumstances? 

As  matter  of  principle  and  legal  logic,  it  would  seem  that  neither 
wife  can  testify.  It  is  clear  that  established  law  and  public  policy  ex- 
cludes the  first  wife,  who  is  usually  designated  as  the  lawful  wife. 
Defendant  is  charged  with  marrying  a  second  wife  while  having  a 
living  lawful  wife.  But  the  plea  of  not  guilty  puts  the  allegations  of 
a  second  marriage,  and  all  other  material  allegations,  in  issue,  and  puts 
the  burden  of  proving  them  a\\  beyond  reasonable  doubt,  upon  the 
prosecution.  Defendant  is  presumed  to  be  innocent  through  every  stage 
of  the  trial,  until  the  case  is  finally  submitted  to  the  jury  to  deter- 
mine from  all  of  the  evidence  whether  that  presumption  has  been  over- 
come. Until  the  jury  thus  acts,  Is  it  not  a  legal  presumption  that  de- 
fendant did  not  contract  a  bigamous  marriage,  and  that  the  second 
wife  is  a  lawful  wife?  And  this,  notwithstanding  defendant's  failure 
to  controvert  any  evidence  received,  and  independent  of  any  supposed 
admissions  that  may  have  been  received  in  evidence. 

The  law  does  not  require  him  to  deny  or  controvert  any  evidence  or 
admissions  that  may  have  been  received  touching  the  first  marriage 
or  any  other  matter;  and  the  receiving  of  such  evidence  while  the  pre- 
sumption of  innocence  continues  is  not  an  adjudication  or  establish- 
ment of  any  fact  against  him  whatsoever.    Until  the  jury  adjudicates 


^le 


LOWERY  V.  PEOPLE. 


1^ 


to 


the  question  tbe  presumption  is  that  the  second  wife  is  a  legal  wife. 
How,  then,  can  she  be  permitted  to  testify? 

As  to  the  husband  and  wife  giving  evidence  in  criminal  cases,  the 
rule  at  common  law  seems  to  have  ^een  well  settled  that  neither  could 
give  evidence  against  the  other  except  for  a  personal  injury  by  the 
one  to  the  other,  or  in  proceedings  to  keep  the  peace;  and  it  has  been 
held  that  such  injury  must  have  been  of  a  serious  nature  to  permit  of 
such  evidence.  The  weightiest  consideration  in  maintaining  this  rule 
was  that  of  public  policy,  which  is  apparent  on  an  inspection  of  the 
leading  authorities,  some  of  which  are  the  following: 

In  2  Kent's  Com.,  p.  179,  the  principle  is  stated  thus:  "The  husband 
and  wife  cannot  be  witnesses  for  or  against  each  other  in  a  civil  suit. 
This  is  a  settled  principle  of  law  and  equity,  and  it  is  founded  as  well 
on  the  interest  of  the  parties  being  the  same  as  on  public  policy.  The 
foundations  of  society  would  be  shaken,  according  to  the  strong  lan- 
guage of  some  of  the  cases,  by  permitting  it.  Nor  can  either  of  them 
be  permitted  to  give  any  testimony,  either  in  a  civil  or  criminal  case, 
which  goes  to  criminate  the  other;  and  this  rule  is  so  inviolable  that 
no  consent  will  authorize  the  breach  of  it." 

In  Buller's  Nisi  Prius,  p.  286,  it  is  said:  "That  husband  and  wife 
cannot  be  admitted  to  be  witnesses  for  each  other,  because  their  in- 
terests are  absolutely  the  same;  nor  against  each  other,  because  con- 
trary to  the  legal  policy  of  marriage."  Further  along  he  refers  to  ^Ixe 
case  of  a  woman  compelled  by  force  to  marry,  as  an  exception,  —"For 
a  contract  obtained  by  force  has  no  obligation  in  law.  So  upon  an  in- 
dictment .  .  .  for  marrying  a  second  wife,  the  fidt  being  alive, 
though  the  first  cannot  be  a  witness,  the  second  luay,  the  second  mar- 
riage being  void." 

In  a  case  for  malicious  pro.^dcution.  Lord  Hardwicke,  C.  J.,  said: 
"The  reason  the  law  will  net  suffer  a  wife  to  be  a  witness  for  or 
against  her  husband  is,  to  preserve  the  peace  of  families;  and  therefore 
I  shall  never  encourage  such  a  consent."    Cases  temp.  Hardwicke,  264. 

In  Wilson  v.  Hill,  13  N.  J.  Eq.  143  (on  p.  147),  the  case  being  one 
upon  equitable  interests  in  property  and  growing  out  of  transactions 
connected  with  an  attempted  indictment  for  bigamy,  the  court  said: 
"The  wife  was  most  unlawfully  and  improperly  brought  before  the 
grand  jury,  and  compelled  to  testify  upon  a  criminal  charge  against 
her  husband.  There  is  no  clearer  principle  of  law  than  that  a  wife 
will  not  be  permitted  to  testify  against  her  husband  on  a  charge  of 
bigamy,  even  by  the  husband's  consent.  2  Starkie's  Ev.  399;  Oregg's 
Case,  Sir  T.  Raymond,  1;  Roscoe's  Crim.  Ev.  114.  She  is  not  permitted 
to  testify  for  or  against  him — not  for  him,  on  account  of  the  strong 
influence  and  temptation  she  is  under  to  pervert  the  truth  in  his  favor; 
nor  against  him,  for  fear  of  creating  dissension.  The  evidence  is  ex- 
cluded, and,  in  my  judgment,  most  wisely  excluded,  upon  principles  of 
public  policy." 

In  Mitchinson  v.  Cross,  58  Til.  a6,  in  referring  to  2  Kent's  Com.  179, 
supra,  the  court  said:  "This  reference  is  not  mad?  so  much  to  show 
what  the  rule  was,  as  the  foundation  of  the  rule,  ^.hich  is  both  on  the 
ground  of  interest  and  public  policy."    .    .    .    "It  is  apparent  that 


I  1 


176 


AMERICAN  CRI5IINAL  REPORTS. 


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this  provision  of  the  statute  removes  the  disqualification  of  witnesses 
by  reason  of  Interest.  But  does  it  touch  a  disqualification  based  upon 
reasons  of  public  policy?  We  think  not.  The  question  has  arisen  in 
England  and  in  several  of  the  States,  under  statutes  similar  to  ours, 
and  it  has  been  uniformly  held  that  a  statute  removing  Incompetency, 
by  reason  of  interest,  did  not  remove  it  as  to  husband  or  wife."  And 
the  same  court,  in  Reeves,  Jr.  v.  Herr,  59  111.  79.  in  referring  to  the  ex- 
clusion of  i,uch  evidence  based  on  the  ground  of  unity  of  interest,  said: 
"But  we  conceive  this  rule  of  exclusion  does  not  rest  solely  upon  that 
ground,  but  on  considerations  of  public  policy  as  well."  And  the  court 
refers  to  Coke  on  Littleton  as  laying  down  the  doctrine  that  a  wife 
cannot  be  produced  for  or  against  her  husband  because  it  might  be  a 
cause  of  implacable  discord  and  dissension  between  them  and  a  means 
of  great  inconvenience. 

Iii  Miner  v.  The  People,  58  111.  59,  which  was  an  indictment  fot 
adultery  against  Miner  and  Eliza  Jones,  and  on  the  trial  of  w'hich 
Samuel  Jones,  her  alleged  husband,  had  been  permitted  to  testify,  the 
court  said  he  was  an  incompetent  witness;  and  that  "It  may  be  as- 
sumed as  an  inflexible  rule  that,  where  husband  or  wife  is  a  party, 
neither  can  be  a  witness,  either  for  or  against  each  other,  except  as 
modified  by  the  statute.    This  is  not  changed  by  the  act  of  1867." 

"This  provision  only  removes  the  disqualification  of  witnesses  by  rea- 
son of  interest  or  conviction  of  crime.  The  exclusion  of  husband  and 
wife  from  being  witnesses  for  or  against  each  other  is  not  solely  on 
the  ground  of  interest.  This  exclusion  is  partly  founded  on  the  iden- 
tity of  their  legal  rights  and  interests,  and  partly  on  principles  of  pub- 
lic policy,  which  lie  at  the  basis  of  civil  society."  1  Oreenl.  Ev.,  sec. 
334;  Roscoe's  Crim.  Ev.  147  (5th  ed.).  Under  a  similar  statute  re- 
moving the  incompetency  of  witnesses  by  reason  of  interest,  in  civil 
cases,  this  court  held  that  the  statute  did  not  reach  a  disqualification 
based  upon  reasons  of  public  policy,  and  so  did  not  remove  the  incom- 
petency  as  to  husband  and  wife.  Mitchinson  v.  Cross,  68  111.  366." 
From  Creed  v.  People,  81  111.  565. 

Mr.  Greenleaf  (sec.  334,  vol.  1),  after  stating  the  common-law  gen- 
eral rule  to  be,  that  neither  could  give  evidence  in  a  civil  or  criminal 
case  to  which  the  other  was  a  party,  proceeded:  "This  exclusion  Is 
founded  partly  on  the  identity  of  their  legal  rights  and  interests,  and 
partly  on  principles  of  public  policy,  which  lie  at  the  basis  of  civil 
society.  For  it  is  essential  to  the  happiness  of  social  life  that  the 
confidence  subsisting  between  husband  and  wife  should  be  sacredly 
protected  and  cherished  in  its  most  unlimited  extent;  and  to  break 
down  or  impair  the  great  principles  which  protect  the  sanctities  of 
that  relation  would  be  to  destroy  the  best  solace  of  human  existence."^ 

2  Starkie's  Ev.  706  (Metcalfs  3d  Am.  ed.,  1830),  lays  down  the  rule: 
"The  husband  and  wife  cannot  be  witnesses  for  each  other,  for  their  in- 
terests are  identical,  nor  against  each  other,  on  grounds  of  public  pol- 
icy, for  fear  of  creating  distrust  and  sowing  dissensions  between  them, 
and  occasioning  perjury.  So  important  is  this  rule  that  the  law  will 
not  allow  it  to  be  violated,  even  by  agreement;  the  wife  cannot  be 
examined  against  the  husband,  although  he  consents;  and  the  principle 


Is  fu 
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COMMONWEALTH  v.  MILLIKEN. 


177 


is  further  preserved  by  adhering  to  the  rule  even  after  the  marriage 
tie  has  been  dissolved  by  the  death  of  one  of  the  parties,  or  by  a  di- 
vorce for  adultery." 

In  Roscoe's  Cr.  Ev.  12E^,  referring  to  the  statutes  on  evidence,  it  is 
said:  "An  important  exception,  however,  was  expressly  made  in  crim- 
inal cases  with  regard  to  husbands  and  wives,  who  remain  as  at  com- 
mon law,  incompetent  witnesses  either  for  or  against  each  other." 
.  .  .  "The  rule  is  in  general  absolute,  and  cannot  be  waived.  It 
excludes  them  from  givin,-;  evidence,  not  only  of  facts,  but  of  state- 
ments made  by  either  in  the  nature  of  admissions." 

This  rule  was  ably  discussed  in  North  Carolina,  and  in  State  v. 
Hussey,  44  N.  C.  123,  after  alluding  to  the  rule  as  established,  the  court 
said:  "This  rule  has  been  adopted  partly  on  the  ground  of  interest 
and  partly  on  principles  of  public  policy,  which  lie  at  the  basis  of  civil 
society.  A  contrary  rule  would  break  down  or  weaken  the  great  prin- 
ciples which  protect  the  sanctities  of  the  marriage  state.  The  con- 
fidence existing  between  husband  and  wife  should  be  treasured  and 
rendered  inviolate." 

In  Overton  v.  State,  43  Tex.  616,  which  was  an  indictment  against 
Overton  for  appropriating  a  mule  claimed  by  the  wife  to  have  been  her 
special  property,  the  Supreme  Court  said  that  the  wife  was  an  incom- 
petent witness;  that  the  evident  intent  and  purpose  of  the  law  in  per- 
mitting an  exception  to  the  rule  where  personal  oilenses  against  each 
other  were  to  be  inquired  into  did  not  mean  injuries  to  property,  but 
strictly  personal  offenses  by  the  one  against  the  other. 

In  State  v.  Welch,  26  Me.  30,  the  court  said:  "The  defendant  is  in- 
dicted for  the  crime  of  adultery,  and  the  question  is,  whether  the  hus- 
band of  the  woman  with  whom  it  is  alleged  to  have  been  committed  is 
a  competent  witness  to  testify  to  the  act.  Neither  the  husband  nor  wife 
of  the  party  Is  competent  to  give  evidence  against  such  party.  The 
reason  for  the  exclusion  is  founded  partly  on  the  identity  of  interest 
and  partly  on  a  principle  of  public  policy,  which  deems  it  necessary  to 
guard  the  security  and  confidence  of  private  life,  even  at  the  risk  of 
an  occasional  failure  of  Justice." 


!l!i 


Commonwealth  v.  Millikeit. 


174  Mass.  79—54  N.  B.  Rep.  357. 

Decided  July  1,  1899. 

BniBERT!    Indictment — Allegations— Construction. 

Where  a  Juror  was  indicted  under  the  statute  for  receiving  a  bribe, 
it  was  unnecessary  to  allege  that  the  bribe  was  given  by  a  party 
to  the  action. 

Where  the  indictment  follows  the  words  of  the  statute  it  is  sufll- 
cient. 

VouXI  — 13 


178 


AMERICAN  CRIMINAL  REPORTS. 


hii  - 


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1,1 

Charles  II.  Milliken  was  convicted  of  taking  a  bribe,  in  the 
Superior  Criminal  Court;  Gaskill,  Judge;  and  takes  excep- 
tions.   Exceptions  overruled. 

/.  D.  McLaughlin,  Second  Asst.  Dist  Attorney,  for  the  Com- 
monwealth. 

H.  W.  James,  for  the  defendant. 

Morton,  J.  The  exceptions  in  this  case  are  to  the  overrul- 
ing of  the  motion  to  quash.  The  first,  second,  and  fourth  rea- 
sons contained  in  the  motion  are  that  the  indictment  does  not  al- 
lege that  the  bribe  was  taken  or  received  from  a  party  to  the  ac- 
tion or  from  one  acting  on  behalf  of  such  a  party.  It  was  not 
necessary  that  it  should  so  allege.  The  statute  under  which  the 
defendant  was  indicted  provides  that  if  a  juror  "corruptly  takes 
anything  to  give  his  verdict,"  or  "corruptly  receives  any  gift  or 
gratuity  whatever  from  a  party  to  a  suit,  cause,  or  proceed- 
ing ...  he  shall  be  pimished,"  etc  Pub.  Stats.,  ch.  205, 
§  15.  There  are  therefore  two  things  for  either  of  which  a 
juror  may  be  indicted;  namely,  corruptly  taking  anything  to 
give  his  verdict,  or  corniptly  receiving  any  gift  from  a  party  to 
a  suit,  cause,  or  proceeding.  The  defendant  was  indicted  for 
doing  the  first,  and  it  was  unnecessary  to  allege  that  the  bribe 
was  taken  or  received  from  a  party  to  the  cause  or  proceeding. 
What  we  have  said  disposes  of  the  third  reason  also,  which  is 
that  two  distinct  offenses  are  set  forth  in  one  count.  The  fifth 
reason  is  that  the  agreement  under  which  the  money  was  re- 
ceived is  not  sufficiently  described.  The  indictment  follows  the 
words  of  the  statute.  Commonwealth  v.  Dyer,  128  Mass.  70. 
It  is  enough  to  allege  of  the  defendant  that  he  corruptly  took 
money  of  a  person  to  the  jurors  unknown,  to  give  his  verdict  in 
favor  of  one  of  the  parties  to  the  cause.  Ordinarily  it  would  be 
impossible  to  describe  the  agreement  under  which  the  money 
was  received,  and  the  statute  does  not  require  it  The  statute 
sets  forth  with  clearness  the  things  which  constitute  the  offense, 
and  it  is  not  necessary  to  include  any  others  in  the  indictment. 
The  sixth  reason,  that  the  indictment  did  not  plainly,  substan- 
tially, and  formally  set  forth  any  offense  against  the  laws  of 
this  Commonwealth,  has  not  been  argued.  There  is  clearly  no 
merit  in  it.    Exceptions  overruled. 


STATE  V.  DURNAM.  179 

State  v.  Durnam. 

73  Minn.  150—75  N.  W.  Rep.  1127. 

Decided  July  1,  1898. 

Bribery  :   Challenge  to  panel — Challenges  to  jurors — Incompetency  of 
jurors — Indictment — Evidence — Accomplice — Punishment. 

1.  Challenges  to  the  panel  not  allowed.  Loose  practice  thereon. 

2.  General  challenge  to  jurors  for  "actual  bias"  is  sufficient,  espe- 

cially where  the  defendant  joined  issue  on  the  challenges  without 
objecting  to  their  insufficiency. 

3.  Where  the  court  acted  as  the  trior  on  such  challenges,  its  findings 

are  not  reviewable. 

4.  Objections  cannot  be  taken  to  competency  of  jurors  after  sworn. 

The  fact  that  a  juror  who  had  declared  his  intention  to  become  a 
citizen,  but  was  not  a  citizen  of  the  United  States,  but  who  had 
not  been  asked  as  to  his  citizenship  on  his  examination,  sat  on 
the  trial,  should  not  be  ground  for  disturbing  the  verdict.  Such 
disqualification  does  not  go  to  the  intelligence  or  impartiality  of  a 
juror. 

5.  A  defendant  in  a  criminal  case  may  waive  an  objection  to  a  juror 

for  incompetency. 

6.  Defendant  was  indicted  for  asking  a  bribe  from  Richards,  "upon 

the  understanding  and  agreement" — statutory  words — that  his 
vote,  etc.,  should  be  influenced  in  favor  of  accepting  a  certain 
bid  by  Haivorson,  Richards  &  Co.,  held  unnecessary  to  allege  with 
whom  the  understanding  and  agreement  was  made;  that  where 
one  asks  for  a  bribe,  it  is  net  necessary  that  the  one  asked  should 
consent  to  give  it.  It  suffices  that  the  party  asking  for  a  bribe  is 
ready  and  willing  to  accept  it. 

7.  The  city  council's  proceedings,  including  the  committee's  majority 

and  minority  reports,  and  the  bids,  were  competent  evidence. 

8.  Evidence  of  a  conversation  defendant  had  with  Haivorson  on  the 

day  previous  to  the  transaction  with  Richards  not  improper  as 
relating  to  a  separate  offense.  The  several  conversations  were 
parts  of  the  same  transaction.  Even  if  it  related  to  a  separate 
offense,  it  would  have  been  admissible  for  the  purpose  of  showing 
criminal  intent,  as  attempting  similar  offenses. 

9.  Instructions  that  it  was  immaterial  whether  or  not  defendant's 

own  vote  was  to  be  affected  by  the  bribe,  if  he  was  to  corruptly 
influence  the  action  of  other  members  of  the  council,  he  would  be 
guilty,  held  not  erroneous. 

10.  Instructions  implying  that  the  persons  solicited  for  bribes  were 

accomplices,  properly  refused. 

11.  Sentence  of  six  years  and  six  months  not  excessive,  and  not  "cruel 

or  unusual"  punishment. 

Appeal   from   Hennepin    County   District    Court;    Elliott, 
Judge. 

George  A.  Durnam  convicted  of  soliciting  a  bribe.    Affirmed. 


l¥' 


ISO 


AMERICAN  CRIMINAL  REPORTS. 


f^ 


•h 


II.  W.  Chillis,  Attorney-General,  and  James  A.  Peterson, 
County  Attorney  for  Hennepin  County,  for  the  State. 
Harrison  tO  Noyes,  for  the  appellant 

The  facts  appear  in  the  opinion. 

Mitchell,  J.  The  defendant  was  indicted  under  section  G5 
of  the  Penal  Code  (G.  S.  1894,  §  G349)  for  having  asked  for 
a  bribe  from  one  Charles  H.  Eiehards,  as  a  member  of  the  firm 
of  llalvorson,  Richards  &  Co.,  "Upon  the  understandinj?  and 
agreement  that  his,  the  said  George  II.  Durnam's,  official  voto 
and  action  as  a  member  of  said  city  council  (of  ^linneapolis), 
as  aforesaid,  should  be  influenced  thereby  in  the  following  man- 
ner, to  wit,  in  favor  of  the  acceptance  by  the  city  council  of  a 
certain  bid  theretofore  duly  submitted  and  proposed  by  the  said 
llalvorson,  Richards  &  Company  to  said  city  council  for  the 
construction  of  a  reservoir  and  boulevard  by  the  said  city  of 
Minneapolis,"  etc. 

The  trial  resulted  in  a  conviction,  and  from  an  order  denying 
his  motion  for  a  new  trial  the  defendant  appealed. 

1.  The  first  five  assignments  of  error  relate  to  the  action  of 
the  court  in  reference  to  the  defendant's  challenges  to  the  panel 
of  petit  jurors.  The  record  shows  that  when  the  case  was  called 
for  trial  the  following  proceedings  were  had,  viz: 

"Defendant's  counsel:  I  have  a  challenge  here  to  the  panel, 
and  the  same  challenge  to  the  special  venire  called  for  la^t 
^Monday  of  fifty  names.  The  court :  You  do  not  care  to  argue 
that  now?  Defendant's  counsel:  I^o,  sir.  The  court:  Chal- 
lenge foimd  not  true.  Defendant's  counsel:  Defendant  ex- 
cepts." 

The  challenges  so  made  and  filed  with  the  clerk  were  on  the 
ground  that  the  list  of  petit  jurors  and  the  special  venire  were 
not  selected  as  provided  by  G.  S.  1894,  §  5611.  This  is  ab- 
solutely all  that  the  record  discloses  on  the  subject.  In  his  cer- 
tificate to  the  bill  of  exceptions  the  trial  judge  states  as  follows : 

"The  challenges  to  the  panels  were  made  and  fully  argued  at 
a  former  trial  of  a  similar  case,  and  decided  by  another  judge 
of  this  court.  When  the  questions  were  raised  on  this  trial,  it 
was  stated  that  no  argument  would  be  made  on  the  same.  The 
challenges  were  made  and  ruled  on  by  the  court  with  the  under- 


t 


STATE  V.  DURNA51 


181 


Son, 


or) 


standing  thnt  they  were  denied,  and  that  a  record  simply  was 
being  made." 

Defendant's  counsel  do  not  deny  the  truth  of  any  part  of  this 
statement  except  that  which  alleges  that  the  challenges  to  the 
panels  were  fully  argued  at  a  former  trial  of  a  similar  case, 
their  claim  being  that,  although  made,  denied  by  the  State,  and 
evidence  introduced,  the  challenges  were  not  argued  at  all. 

The  course  of  procedure  where  a  challenge  to  the  panel  is  in- 
terposed is  prescribed  by  G.  S.  1804,  §§  735G-7359.  When 
this  challenge  was  interposed,  coiinsel  for  the  State  should  have 
excepted  to  it,  or  denied  it,  or  first  excepted,  and,  if  that  was 
disallowed,  then  denied  the  facts  alleged  in  the  challenge,  and 
the  court  should  then  have  proceeded  to  try  the  question  of  fact. 
According  to  the  record,  as  soon  as  the  counsel  interposed  the 
challenge,  and  before  counsel  for  the  State  had  either  excepted 
to  it  or  denied  it,  the  court,  on  its  own  motion,  took  for  granted, 
as  indicated  by  his  question,  that  counsel  for  the  defendant,  for 
some  reason,  would  not  care  to  argue  the  matter,  to  which  coun- 
sel promptly  assented.  This  clearly  indicates  that  the  record  is 
incomplete,  and  that  both  court  and  counsel  were  acting  upon 
something  which  had  preceded,  and  which  was  understood  be- 
tween themselves,  but  which  does  not  appear  in  the  record. 

The  place  for  facts  to  appear  is  in  the  *'case"  or  bill  of  ex- 
ceptions, and  not  in  the  judge's  certificate;  and  the  general  rule 
is  that  the  court  cannot  cure  a  ruling  which  is  erroneous  accord- 
ing to  the  former  by  attempting  to  state  additional  facts  or  ex- 
planations in  the  latter.  But  in  this  case  the  statements  con- 
tained in  the  certificate  so  dovetail  in  with  the  evidently  incom- 
plete record,  and  throw  so  much  light  upon  it,  that,  read  in  that 
light,  the  record  is  perfectly  intelligible,  and  makes  clear  that 
the  understanding  of  both  court  and  counsel  was  that,  as  this 
challenge  was  made  upon  the  same  grounds  as  the  challenge  in 
a  former  similar  case,  and  the  evidence  in  support  of  it  would 
be  the  same,  it  should  be  considered  denied,  and  overruled  pro 
forma,  so  that  defendant  might  save  the  question  in  case  of  an 
appeal.  Counsel's  answer  was  certainly  calculated  to  convey 
this  impression. 

He  suggests  that,  as  the  challenge  had  been  neither  excepted 
to  nor  denied  by  the  State,  there  was  nothing  for  them  to  argue, 


m 


182 


AMERICAN   CRIMINAL  REPORTS. 


W     1 


and  that  it  was  not  his  duty  to  advise  the  counsel  for  the  State 
or  the  court  as  to  the  proper  procedure.  But  no  court  would 
have  understood  counsel's  answer  as  meaning  what  he  now 
claims,  viz.,  that  he  did  not  wish  to  argue  the  question  because 
there  was  nothing  before  the  court  to  argue.  On  the  contrary, 
it  would,  under  the  circumstances,  understand  counsel  as  mean- 
ing just  what  the  court  says  it  did,  and  as  we  have  no  doubt  he 
did  mean,  viz.,  that,  in  view  of  the  former  rulings  of  the  court 
on  the  question,  he  expected  an  adverse  decision,  but  wished  to 
save  it  on  the  record  for  the  purpose  of  an  appeal. 

A  very  loose  and  informal  practice  was  adopted  both  on  the 
trial  and  in  making  up  the  bill  of  exceptions,  but  we  think  that 
it  is  clearly  apparent  that  the  meaning  of  both  counsel  and  court 
was  as  stated  above. 

2.  There  are  several  assignments  of  error  relating  to  chal- 
lenges to  individual  jurors.  The  State  challenged  certain  jurors 
on  the  groimd  of  "actual  bias."  It  is  urged  that  this  is  not  suffi- 
cienth'  specific;  that  G.  S.  1894,  §  7372,  requires  that  in  a  chal- 
lenge for  actual  bias  the  cause  stated  in  the  second  subdivision 
of  section  7368  shall  be  alleged.  "No  such  practice  has  ever  ob- 
tained in  this  State,  so  far  as  we  know.  We  are  satisfied  that 
the  general  understanding  of  the  courts  and  bar  is  that  a  chal- 
lenge generally  "for  actual  bias"  is  sufficient  in  form,  and  that 
section  7372  does  not  mean  that  the  challenge  shall  recite  the 
second  subdivision  of  section  7368,  but  merely  refers  to  the 
latter  for  a  definition  of  actual  bias. 

But  it  is  unnecessary  to  pass  on  this  question,  because  defend- 
ant made  no  objection  to  the  sufficiency  of  the  challenges,  but 
joined  issue  by  denying  them,  and  then  proceeded  with  the  trial 
of  them  on  the  evidence. 

There  is  nothing  in  the  point  that  the  court  erred  in  finding 
these  challenges  true.  The  decision  of  triors  is  not  reviewable, 
and  the  same  is  true  of  the  decision  of  the  court  when  it  acts  in 
place  of  triors.  State  v.  Mims,  20  3^Iinn.  183,  2  N.  \V.  Rep. 
294,  083. 

3.  It  is  urged  that  the  indictment  is  insufficient  for  the  rea- 
son that  it  does  not  state  with  whom  the  "understanding  and 
agreement"  were  made  that  defendant's  official  vote  and  action 
should  be  influenced  thereby,  or  that  any  understanding  and 


;:: 


1 


STATE  V.  DURNAM. 


183 


agreement  to  that  effect  were  made  with  any  person.  This  con- 
tention is  based  entirely  upon  the  use  in  the  statute  of  the 
words  "upon  any  agreement  or  understanding."  It  is  argued 
that  these  words  necessarily  imply  the  meeting  of  two  minds, 
and  hence,  to  constitute  an  offense  under  this  statute,  the  minds 
of  the  officer  asking  the  bribe  and  of  the  person  from  whom  it  is 
asked  shall  meet  upon  the  proposition  that  the  officer  will  violate 
his  official  duty. 

If  this  contention  is  sound,  it  would  necessarily  follow  that 
no  public  officer  would  be  guilty  of  the  offense  of  asking  for  a 
bribe  unless  he  found  a  person  who  could  and  did  corruptly 
agree  to  pay  it.  There  is  no  middle  ground.  The  inevitable 
logic  of  counsel's  position  is  that  there  can  be  no  conviction  of 
an  officer  for  asking  a  bribe  unless  facts  can  be  shown  which  con- 
stitute a  crime  on  the  part  of  the  one  from  whom  the  bribe  was 
asked.  Siich  a  construction  would  practically  nullify  the  statute 
altogether,  for,  if  the  person  of  Avhom  the  bribe  was  solicited 
proved  to  be  honest,  and  refused  to  entertain  the  proposition, 
the  officer  soliciting  the  bribe  would  be  guilty  of  no  offense, 
while,  on  the  other  hand,  if  he  was  dishonest,  and  agreed  to  pay 
the  bribe,  he  would  not  be  likely  to  inform  on  the  officer,  and 
by  so  doing  incriminate  himself. 

This  is  not  the  correct  construction  of  the  statute.  The  mean- 
ing to  be  given  to  the  words  "agreement"  and  "understanding" 
depends  upon  the  connection  in  which  they  are  used;  and  in 
construing  a  statute  it  is  a  very  unsafe  practice  to  adhere  strictly 
to  lexicographers'  definitions  of  words  standing  alone,  and  sev- 
ered from  their  context.  To  constitute  the  offense  under  this 
statute  of  asking  for  a  bribe,  it  is  not  necessary  that  the  party 
solicited  shall  consent  to  give  it.  All  that  is  necessary  is  that 
the  party  asking  the  bribe  is  ready  and  willing  to  enter  into  a 
corrupt  agreement  or  understanding  to  accept  it.  People  v. 
Squires,  99  Cal.  327,  33  Pac.  Eep.  1092.  See  also  Com.  v. 
Murray,  135  Mass.  530. 

4.  This  brings  us  to  the  consideration  of  the  assignment  of 
error  relating  to  the  conduct  and  qualifications  of  certain  mem- 
bers of  the  jury  which  tried  the  case. 

One  Armitage  was  called  as  a  juror,  and  was  examined  by  de- 
fendant's counsel  as  to  his  residence,  business,  and  whether  he 


)*■ 


184 


AMERICAN  CRIMINAL  REPORTS. 


^--i*- 


had  any  acqviaintance  or  business  relations  with  counsel  for  the 
State.  Counsel,  without  pursuing  the  examination  an^'  further, 
or  intor]V)sing  a  challenge,  expressed  himself  as  content  with  the 
juror.  Counsel  for  the  State,  after  inquiring  briefly  of  tho 
juror  as  to  his  acquaintance  or  business  relations  with  the  de- 
fendant or  the  other  members  of  the  city  council,  also  expressed 
hiiusclf  as  content,  and  Armitage  was  then  sworn  as  a  juror, 
without  objection  by  either  party.  After  verdict,  and  on  mo- 
tion for  a  new  trial,  the  defendant  presented  affidavits  tending 
to  show  that  Armitage  was  not  a  qualified  juror,  not  being  a 
citizen  of  the  United  States;  also  that  prior  to  this  trial,  and 
immediately  after  the  disagreement  of  the  jury  on  a  former 
trial  of  the  case,  he  stated  that  he  wished  he  had  been  on  that 
jury;  that  he  would  have  done  all  he  could  to  convict  the  de- 
fendant; also  that  after  the  rendition  of  the  verdict  on  the  last 
trial  he  stated  that  he  *Svas  glad  to  g-et  a  chance  to  sit  on  the 
jury;  that  he  knew  defendant  pretty  well," — implying  that  he 
was  glad  to  have  a  chance  to  convict  him.  Armitage  made  an 
affidavit,  in  which  he  positively  denies  having  made  either  of 
these  statements,  in  which  he  was  corroborated  by  the  affidavits 
of  several  persons  who  were  present  on  the  occasion  on  v.hich 
the  statements  were  alleged  to  have  been  made. 

Upon  those  conflicting  affidavits  it  was  for  the  trial  judge  to 
determine  on  which  side  the  truth  was. 

However,  it  stood  practically  admitted  that  at  the  time  of 
the  trial  Armitage  was  not  a  citizen  of  the  United  States,  but 
had  merely  declared  his  intention  of  becoming  such. 

The  doctrine  is  as  old  as  the  couiuion  law  that  no  objection 
could  be  taken  to  any  incompetency  of  a  juror  after  he  was  ac- 
cepted and  sworn.  Wharton's  Case,  Yelv.  24.  While  this  «loo- 
trine  may  have  been  somewhat  modified  in  modern  times,  yet 
the  general  rule  (and  the  better  one  on  principle)  still  is:  First, 
no  objection  can  be  taken  to  any  incompetency  in  a  juror  (exist- 
ing at  the  time  he  was  called)  after  ho  is  accepted  and  sworn,  if 
the  fact  was  known  to  the  party,  and  he  was  silent ;  second,  and, 
even  if  not  discovered  until  after  verdict,  the  cause  of  challenge 
will  not  per  se  constitute  ground  for  a  new  trial.  In  such  case 
only  the  discretion  of  the  court  can  be  appealed  to,  which  will 
consider  the  nature  of  the  objection  to  the  juror,  what  diligence 


'Ml 
,  m 


,{:f|r 


STATE  V.  DURNAM. 


186 


the  party  exercised  to  ascertain  the  fact  in  due  time,  and  the 
other  circumstances  of  the  case.  1  Bisiion,  Cr.  Proc,  §§  946, 
940a;  State  v.  Davis,  80  N.  C.  412 ;  Geo.yr  v.  State,  39  Miss. 
570;  Beck  v.  State,  20  Ohio  St.  228;  GiHeiqrie  v.  State,  8  Yorg. 
507;  State  v.  Quarrel,  2  Bay,  150;  Slate  v.  Jackson,  27  Kan. 
581 ;  Chase  v.  People,  40  111.  352 ;  State  v.  Vogel,  22  Wis.  449. 

Some  of  the  cases  seem  to  hold  that  under  no  circtimstances, 
even  where  the  objection  waa  not  discovered  until  after  verdict, 
will  the  incompetency  of  the  juror  be  ground  for  a  new  trial. 
We  would  not  go  that  far.  We  think  it  is  a  matter  addressed  to 
the  sound  judicial  discretion  of  the  trial  judge,  who  should  take 
all  the  circumstances  above  referred  to  into  consideration. 

In  this  case,  although  the  court  peinnitted  defendant's  counsel 
to  examine  the  juror  preliminarily,  in  order  to  determine 
whether  he  would  interpose  a  challenge,  yet  counsel  never  made 
any  inquiry  as  to  the  citizenship  of  the  juror,  but  accepted  him 
without  interposing  any  challenge ;  and  that,  too,  at  a  time  when, 
owing  to  the  recent  amendment  of  our  constitution,  the  question 
of  citizenship  was  frequently  called  to  the  attention  of  the  courts 
and  the  bar,  in  order  to  ascertain  the  qualification  of  both  grand 
and  petit  jurors.  The  disqualification  by  reason  of  alienage  is 
one  which  does  not  go  to  either  the  intelligence  or  the  impar- 
tiality of  a  proposed  juror.  In  view  of  the  nature  of  the  objec- 
tion and  the  lack  of  diligence  to  ascertain  the  juror's  compe- 
tency, we  are  clearly  of  opinion  that  the  trial  court  committed 
no  error  in  denying  a  new  trial  on  the  ground  npw  under  con- 
sideration. 

There  is  a  very  clear  distinction  between  waiving  a  trial  by 
jury  and  waiving  an  objection  to  the  competency  of  a  juror.  A 
defendant  indicted  for  a  felony  can  Avaive  the  latter,  although 
it  may  not  be  competent  for  him  to  waive  the  former.  This  doc- 
trine does  not  at  all  infringe  upon  the  constitutional  guaranty 
that  the  right  of  trial  by  jury  shall  remain  inviolate.  See  Kohl 
V.  LclilbacTc,  160  U.  S.  293,  16  Sup.  Ct.  304. 

What  has  been  said  as  to  the  statement  alleged  to  have  been 
made  by  the  juror  Armitage  tending  to  show  actual  bias  on  his 
part  is  equally  applicable  to  similar  statements  alleged  to  have 
been  made  by  the  jurors  Washburn  and  Campbell.  Defend- 
ant's counsel  merely  asked  them  the  same  general  questions  as 


II 


i!     J 


180 


AMERICAN  CRIMINAL  REPORTS. 


to  their  residence,  business  and  personal  relations  with  the 
counsel  for  the  State,  and  then  accepted  them  without  interpos- 
ing any  challenge.  The  affidavits  submitted  by  the  defendant 
were  suflficiently  rebutted  by  counter  affidavits  on  part  of  tho 
State  to  make  the  question  one  of  fact  for  the  trial  court,  who, 
under  the  circumstances,  occupies  a  position  somewhat  anal- 
ogous to  that  of  the  trior  before  trial. 

We  find  nothing  substantial  in  tho  charges  of  misconduct  of 
the  jurors  while  deliberating  on  their  verdict.  The  affidavits 
of  jurors  as  to  what  took  place  in  the  jury  room  were  inad- 
missible for  the  purpose  of  impeaching  their  verdict.  The  claim 
that  they  .were  allowed  to  separate  d\iring  their  deliberation  was 
sufficiently  rebutted  or  explained  by  the  affidavits  of  the  jurors 
themselves  and  of  the  deputy  sheriff  who  had  them  in  charge. 

5.  Xext  in  order  are  the  assignments  of  error  relating  to  the 
admission  of  evidence. 

The  proceedings  before  the  city  council,  including  the  reports 
of  the  committee,  both  majority  and  minority,  and  the  bid  of 
Ilalvorson,  Richards  &  Co.,  were  competent  for  the  purpose  of 
showing  that  the  matter  upon  which  the  bribe  was  alleged  to 
have  been  solicited,  to  wit,  the  construction  of  a  reservoir  and 
boulevard,  was  pending  before  the  city  council,  and  in  what  way 
or  manner  it  came  to  be  pending.  These  proceedings  showed 
that  the  matter  pending  before  the  council  was  not  merely 
whether  a  reservoir  and  boulevard  should  be  constructed,  but 
also,  and  perhaps  mainly,  whether  the  work  should  be  let  by 
contract  or  done  by  the  city  itself  by  day  labor,  and  that  Ilal- 
vorson, Richards  &  Co.  was  a  bidder,  and  the  lowest  bidder,  for 
the  contract. 

The  mere  fact  that  the  report  of  the  minority  of  the  commit- 
tee contained  some  arguments  in  favor  of  doing  the  work  by 
contract,  which  counsel  for  the  State  might  attempt  to  use 
against  the  defendant  in  an  illegitimate  way,  would  not  render 
the  evidence  incompetent.  It  would  be  for  the  court  to  instruct 
the  jury  for  what  purposes  alone  they  might  consider  it. 

Conceding,  without  deciding,  that  the  other  bids  for  the  work 
were  immaterial,  it  is  impossible  to  conceive  how  the  defendant 
could  have  been  prejudiced  by  their  admission. 


STATE  V.  DURNAM. 


187 


Tlic  evitlcnco  of  the  State  wns  to  tlio  cffc't  that  on  "May  2, 
ITnlvorflon,  the  senior  partner  of  the  firm  of  Ilalvorson,  Richards 
&  Co.,  had  a  conversation  with  the  defendant  in  regard  to  the 
constructi(»n  of  the  proposed  reservoir  and  boulevard,  in  ■which 
defendant  stated  to  him  that  ''there  was  one  way  to  get  that 
work,"  and,  on  being  asked  what  it  was,  replied,  **If  you  put 
up  $10,000,  you  can  get  it,"  and  that  after  some  further  conver- 
sation on  the  subject  Ilalvorson  said  to  defendant  that  he  would 
see  his  partner,  to  which  defendant  replied,  "If  you  will,  you 
had  better  meet  me  at  the  Nicollet  House  at  eight  o'clock  to- 
night;" that  Ilalvorson  went  to  the  Nicollet  House  that  evening, 
and  found  his  partner  Richards  there,  and  told  him  what  de- 
fendant had  said,  and  then  introduced  him  to  the  defendant; 
that  defendant  and  Richards  had  no  conversation  on  the  subject 
that  night,  but  that  the  next  morning  Richards  met  defendant 
at  the  city  hall,  and  then  and  there  had  a  conversation  with 
him,  which  was  opened  by  Richards  saying  to  him  that  they  had 
cftnoluded  that  they  could  not  afford  to  pay  any  money  for  the 
contract;  that  he  did  not  think  they  could  afford  to  pay  $10,000 
for  the  contract.  This  conversation  continued,  in  the  course  of 
wliich,  according  to  the  State's  evidence,  defendant  asked  Rich- 
ards for  a  bribe,  which  alleged  asking  constituted  the  crime 
charged  in  the  indictment. 

Counsel  assign  as  error  the  admission  of  the  conversation  be- 
tween the  defendant  and  ilalvorson  on  !May  2,  on  the  ground 
that  it  tended  to  prove  the  commission  of  a  distinct  and  separnte 
crime,  to  wit,  asking  Ilalvorson  for  a  bribe.  ATe  do  not  see 
whv  this  evidence  was  not  admissible  under  the  rule  which,  in 
certain  cases,  permits  evidence  of  other  similar  offenses  for  the 
purpose  of  proving  criminal  intent.  See  State  v.  Wilson,  72 
:Minn.  522,  75  N.  AV.  Rep.  715. 

IJut  it  is  not  necessary  to  resort  to  this  rule  in  order  to  sus- 
tain the  admission  of  this  evidence.  The  conversation  between 
defendant  and  Ilalvorson  on  Mav  2,  and  that  between  defend- 
ant  and  Richards  on  May  3,  were  parts  of  the  same  transac- 
tion. The  latter  was  but  a  continuation  of  the  former.  The 
former  was  admissible  for  the  purpose,  if  no  other,  of  explain- 
ing and  illustrating  the  latter,     The  court  carefully  explained 


1  J' 


^y ':  I 


Mil"lt.t 


il  1 ,1.1 


if]     t 


188 


AMERICAN  CRIMINAL  REPORTS. 


to  the  jury  the  purpose  of  the  evidence,  and  instructed  them  that 
it  could  not  be  made  the  basis  of  a  conviction  of  the  defendant 
for  asking  a  bribe  from  Halvorson ;  that,  under  the  indictment, 
he  could  only  be  convicted  of  asking  a  bribe  from  Richards,  as 
charged. 

G.  There  are  numerous  assignments  of  error  as  to  portions  of 
the  court's  charge  and  its  refusal  to  charge  as  requested.  ]\[any 
of  these  are  based  upon  the  erroneous  assumption  that  to  consti- 
tute the  crime  charged  there  must  be  a  meeting  of  minds,  or  a 
mutual  understanding  or  agreement,  between  the  person  asking 
the  bribe  and  the  person  of  whom  it  is  asked.  This  has  been 
already  fully  discussed  in  considering  the  sufficiency  of  the  in- 
dictment. 

The  court  charged  the  jury  that  it  was  immaterial  whether 
defendant's  own  vote  was  to  be  affected  by  the  bribe  or  not ;  if 
he  asked  for  the  money,  intending  and  understanding  that  he 
would  take  the  money,  and  use  it  for  the  purpose  of  influencing 
the  action  of  other  members  of  the  council,  and  corruptly  obtain- 
ing the  contract  for  these  people  (Halvorson,  Richards  &  Co.), 
then  he  would  be  guilty  of  the  crime  charged  in  the  indictment. 

The  crime,  as  defined  by  the  statute  (G.  S.  1894,  §  6349),  is 
"Asking,"  etc.,  "upon  any  agreement  or  understanding  that  his 
vote,  opinion,  judgment,  action,  decision  or  other  official  pi*o- 
ceeding  shall  be  influenced  thereby,  or  that  he  will  do  or  omit 
any  act  or  proceeding  or  in  any  way  neglect  or  violate  any  official 

duty." 

The  indictment  charges  that  defendant  asked  the  bribe  "Upon 
the  understanding  and  agreement  that  his  .  .  .  vote  and 
official  action     .     .     .     should  be  influenced  thereby." 

We  are  of  opinion  that  both  the  statute  and  the  indictment 
are  broad  enough  to  include  the  case  of  a  member  of  sn  official 
body  asking  for  money  or  other  valuable  things  for  the  purpose 
of  thereby  corruptly  bribing  or  influencing  the  votes  of  his  col- 
leagues. An  alderman's  constituents  are  entitled  to  liis  influ- 
ence with  his  colleagues  in  the  city  council  as  much  as  they  are 
to  his  vote.  The  one  is  as  much  within  the  sphere  of  his  official 
action  as  is  the  other.  The  statute  never  intended  that  a  publie 
officer  could,  for  a  consideration,  corruptly  use  his  influence  in 
bribing  his  colleagues  to  vote  for  or  against  a  measure,  and  yet 


wl 


wl 


STATE  r.  DURNAAI. 


ISO 


be  exempt  from  criminal  prosecution,  provided  his  own  vote 
was  not  to  bo  influenced  thereby. 

Counsel  is  in  error  in  claiming  that  there  was  no  evidence  to 
which  this  instruction  was  applicable.  Richards  testified  that 
defendant  stated — 

"That,  as  far  as  he  was  concerned,  he  would  be  willing  for  us 
to  have  the  contract  without  putting  up  anything,  but  that  there 
were  sixteen  of  them  in  the  company,  in  the  crowd,  and  that 
they  had  agreed  that  there  shouldn't  one  of  them  accept  money 
unless  they  all  had  some." 

The  court  refused  to  give  to  the  jury  certain  requested  in- 
structions upon  the  proposition  that  a  conviction  cannot  be  had 
upon  the  uncorroborated  testimony  of  an  accomplice.  These  re- 
quests were  made  upon  the  theory  that  Richards,  or  both  Rich- 
ards and  Halvorson,  were  accomplices  of  the  defendant  in  the 
commission  of  the  offense  charged,  or  at  least  that  there  was 
evidence  tending  to  prove  that  fact.  If  there  is  any  evidence 
tending  to  implicate  Halvorson  or  Richards,  even  morally,  with 
the  crime  charged,  the  most  that  can  possibly  be  claimed  for  it 
is  tliat  it  tended  to  prove  that  they  were  inclined  to  entertain  de- 
fendant's demand  favorably,  and  would  have  been  willing  to 
accede  to  it  if  the  sum  demanded  had  not  been  so  large. 

Even  if  they  had  fuli^  acceded  to  defendant's  demand,  and 
had  paid  or  offered  to  pay  the  sum  demanded,  although  they 
wouid  have  been  guilty  of  an  independent  and  separate  crime, 
thoy  would  not  have  been,  within  the  meaning  of  the  law,  ac- 
coiuplicos  of  the  defendant  in  the  commission  of  the  crime  of 
asking  for  r  bribe.  An  accomplice,  in  legal  signification,  is  one 
who  co-f)perates,  aids  or  assists  another  in  the  commission  of  a 
crime,  either  as  principal  or  accessory.  The  general  test  to  de- 
termine whether  a  Avitness  is  or  is  not  an  accomplice  is,  could 
he  himself  have  been  indicted  for  the  offense  either  as  principal 
or  as  jiccessory  ?  If  ho  could  not,  then  he  is  not  an  accomplice. 
Com.  r.  Wood,  11  Gray,  85.  Each  of  the  two  parties  to  a  trans- 
action may  be  guilty  of  a  crime,  and  yet,  if  the  two  crimes  are 
separate  and  distinct  crimes,  the  one  is  not  the  accomplice  of  the 
other.  Thus,  suppose  A.  asks  B.  for  a  bribe,  and  B.  pays  it. 
A.  is  gvilty  of  the  crime  of  asking  a  bribe,  and  B.  of  the  crime 
of  giving  one.     But  the  two  crimes  are  entirely  distinct,  and 


190 


AMERICAN  CRIMINAL  REPORTS. 


1 

|:;j 

Rt 

W''i'  '  ' 

i 

r!  '  '  I 

it         '  ' 

neither  party  coiild  be  indicted,  either  as  principal  or  accessory, 
for  the  crime  committed  by  tlic  other.  Such  a  ease  woiild  not  be 
within  the  statute  forbidding  a  conviction  on  the  uncorroborated 
evidence  of  an  accomplice,  although,  of  course,  the  moral  de- 
linquency of  either,  if  called  as  a  witness  against  the  other, 
would  be  a  fact  going  to  his  credibility,  which  a  jury  should  take 
into  consideration.  State  v.  Sargent,  71  Minn.  28,  73  K  W. 
Kep.  G2G.    See  also  Ttegina  v.  Boyes,  1  Best  &  S.  311. 

7.  It  is  further  claimed  that  the  evidence  is  insufficient  to 
support  the  verdict.  We  have,  to  the  best  of  our  ability,  given 
the  record  the  careful  examination  which  the  importance  and 
gravity  of  the  case  demanded,  keeping  in  mind  that  it  is  a  crim- 
inal, and  not  a  civil,  action.  As  might  be  expected,  the  direct 
evidence  was  confined  to  the  testimony  of  Ilalvorson  and  Rich- 
ards on  the  one  side  and  of  the  defendant  on  the  other.  It  would 
be  worse  than  useless — in  fact,  misleading — to  enter  upon  a  dis- 
cussion of  the  evidence,  imless  it  was  done  exhaustively;  and 
this  could  not  be  done  within  any  reasonable  limits.  Therefore 
we  will  not  attempt  it.  Our  conclusion  is  that  it  justified  the 
verdict,  which  was  evidently  the  view  of  the  trial  judge  who  saw 
and  heard  the  witnesses  on  the  stand. 

8.  The  "newly  discovered  evidence"  of  Warner  was  merely 
cumulative,  and  tending  to  contradict  the  testimony  of  Ilalvor- 
son in  some  particulars,  and  generally  was  not  of  such  a  char- 
acter as  to  require  the  trial  court,  in  the  exercise  of  a  sound  ju- 
dicial discretion,  to  grant  a  new  trial,  even  conceding  that  it 
would  have  justified  it  in  doing  so. 

9.  The  maximum  pr.nishmont,  under  the  statute,  for  this 
crime  is  imprisonment  in  the  State's  prison  for  ten  years.  The 
sentence  of  the  court  wt.^  that  the  defendant  be  confined  in  the 
penitentiary  for  six  years  and  six  months.  It  is  urged  that  this 
sentence  is  "excessive,  unjust  and  contrary  to  tiie  spirit  and  in- 
tent of  the  law."  The  sentence  is  severe,  but  the  crime  is  grave, 
and  one  which  tends,  probably  more  than  any  other,  to  sap  the 
very  foundation  of  all  civil  government.  It  is  for  the  legis- 
lature, and  not  for  the  courts,  to  <letermino  what  the  punishment 
for  crime  shall  be,  provided  it  is  neither  cruel  nor  unusual.     • 

The  assignments  of  error  are  very  numerous,  but  what  has 
been  said  covers  all  points  of  any  substance  urged  by  counsel. 


tri 


5u   *i- 


5TATE  V.  DURNAM. 


191 


We  find  no  error  in  the  record,  and  the  order  denying  a  new 
trial  is  affirmed. 

Note. — Offering  to  bribe  a  United  States  Chinese  interpreter. — Yee 
Gee.  a  Chinaman,  was  held  on  a  charge  of  offering  to  bribe  an  in- 
terpreter, and  appointee  of  the  secretary  of  the  United  States  Treas- 
ury, whose  duty  it  was  to  make  Chinese  translations  for  the  use  of 
that  department;  the  interpreter  being  about  to  translate  certain 
Chinese  letters  and  documents  for  a  United  States  commissioner,  on 
a  charge  against  Yee  Gee,  to  be  heard  by  the  commissioner.  It  was 
held  that  there  was  no  offense  under  the  statute  providing  for  a  pen- 
alty for  offering  to  bribe  any  officer  or  appointee  of  the  United  States, 
or  any  department  or  office  of  the  government,  etc.  That  when  the 
interpreter  acted  as  such  for  the  commissioner,  it  was  out  of  the  scope 
of  his  duty  as  an  appointee  of  the  Treasury  department;  and  that  what- 
ever he  might  do  in  such  matters  was  in  no  sense  connected  with  the 
duties  of  his  office  as  an  appointee  of  the  Treasury  department,  and 
as  to  such  outside  services,  he  was  not  an  officer  or  appointee  of  the 
United  States.    Re  Yee  Gee,  83  Fed.  Rep.  145. 

In  Com.  V.  Donovan  et  al.,  170  Mass.  228,  49  N.  E.  Rep.  104,  It  ap- 
peared that  certain  municipal  officers,  including  Donovan,  as  treasurer, 
were  appointed  by  a  Democratic  mayor,  under  the  statute;  but  the  law 
being  changed  so  as  to  restore  the  power  of  appointments  to  the  coun- 
cil, which  by  a  two-thirds  vote  could  remove  the  mayor's  appointees, 
and  the  council  being  two-thirds  Republican,  and  it  being  understood 
that  they  would  oust  the  mayor's  appointees,  friends  of  Donovan  went 
to  a  councilman  to  prevail  upon  him  to  help  retain  Donovan.  At  the 
conclusion  of  the  Interview  he  asked  what  there  was  in  It  for  him,  to 
which  they  said  they  did  not  know,  but  arranged  for  Donovan  to  see 
him.  At  a  subsequent  meeting,  he  having  persons  concealed,  after 
talking  the  matter  over,  he  again  suggested  a  bribe,  saying  it  would 
take  money  to  buy  him.  Finally  it  was  agreed  that  he  would  take 
promissory  notes  to  the  amount  of  $250.  The  principal  declared  he 
never  signed  the  notes;  that  they  were  forgeries.  Donovan,  his  brother 
and  another  were  convicted,  and  conviction  affirmed;  but  it  seems  the 
very  important  question  of  entrapment  and  collusion  in  crime  was 
not  in  any  way  considered.  According  to  many  authorities,  that  was 
a  weighty  question;  and  if  the  circumstances  suggested  a  plot  for  po- 
litical or  other  sinister  purposes  to  draw  defendant  Into  a  trap,  the 
suggestions  coming  from  the  prosecutors,  the  defendant  might  be  ex- 
onerated, because  the  law  ought  not  to  encourage  conspiracies  to  se- 
duce and  entrap  men  Into  committing  offenses  which  they  might  other- 
wise not  have  committed.  It  would  seem  that  one  of  the  gravest  ques- 
tions  In  the  case  was  entirely  ignored.     (1898.) 


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J  |V  fiV 


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192  AMERICAN  CRIMINAL  REPORTS* 

Drauohn  V.  State. 

,  76  Miss.  574—25  So.  Rep.  153. 

Decided  March  6,  1899. 
BunoLABT :  Indictment — Variance — Confessions. 

1.  An  Indictment  should  charge  the  breaking  into  a  house  with  Intent 

to  steal  the  goods  of  the  owner. 

2.  Proof  of  breaking,  etc.,  into  a  smoke-house  does  not  sustain  an  al- 

legation of  breaking  into  a  dwelling-house. 

3.  The  court  should  inquire  as  to  whether  a  confession  Is  free  and 

voluntary  before  admitting  it  in  evidence. 

4.  Flattery  of  hope,  by  promise  not  to  prosecute,  vitiates  a  confession. 

Appeal  from  the  Circuit  Court  of  Perry  County ;  Hon.  A.  G. 
Mayers,  Judge. 

AVilliam  Draughn,  being  convicted  of  burglary,  appeals.  Re- 
versed. 

Hartfield  &  McLaur'm,  McWillie  &  Thompson,  and  M.  U, 
Mounger,  for  the  appellant. 

The  Attorney-General,  for  the  State. 

Terral,  J.  The  indictment  alleged  "that  William  Draughn 
on  the day  of  June,  1895,  did  feloniously  and  burglar- 
iously break  and  enter  the  dwelling-house  of  Sam  West,  with 
intent  to  commit  the  crime  of  larceny  therein,"  etc.  In  the 
course  of  the  trial  it  clearly  appeared  from  the  evidence  of  the 
prosecutor,  Sam  W^est,  that  the  house  broken  into  was  not  a 
dwelling-house,  but  was  a  crib,  and  the  only  evidence  of  its  use 
was  that  of  W^est,  who  said  that  he  lost  some  bacon  out  of  it. 
The  variance  between  the  allegation  of  the  breaking  into  a 
dwelling-house  and  the  evidence  relating  thereto  constitutes  the 
first  objection  of  the  defendant  to  his  conviction.  The  evidence 
arising  from  the  confession  of  Draughn,  obtained  by  a  promise 
not  to  prosecute  him,  was  also  objected  to.  In  the  third  place 
the  defendant  complains  that,  before  West  testified  as  to  the  con- 
fessions of  Draughn,  he  requested  the  court  to  ascertain,  apart 
from  the  jury,  whether  the  forthcoming  confession  was  free 
and  voluntary,  or  not,  which  the  court  declined  to  do ;  and  this 
action  is  also  complained  of.  Those  several  objections,  we  think, 
are  v.'cU  taken. 


ROBERTS  V.  TERRITORY. 


193 


1.  That  the  court,  before  admitting  the  confession  to  the  jury, 
should  have  examined,  and  known  that  it  was  free  and  volun- 
tary, is  held  by  Ellis  v.  State,  65  Miss.  47,  3  So.  Rep.  188. 

2.  That  the  flattery  of  hope,  held  out  to  the  defendant  by  the 
promise  of  West  not  to  prosecute  him,  vitiated  the  confession 
as  evidence,  is  announced  in  1  Greenl.  Ev.,  §  219. 

3.  That  the  breaking  of  a  crib  or  of  a  smoke-house  will  not 
support  the  allegation  of  the  breaking  of  a  dwelling-house  is  af- 
firmed by  Whart.  Am.  Cr.  Law  (Gth  ed.),  §  IGll. 

The  indictment  is  bad  in  not  alleging  that  Draughn  broke 
and  entered  the  house  of  West,  with  intent  the  goods  and  chattels 
of  West,  then  in  sa'''  house,  feloniously  and  burglariously  to 
take  and  carry  away.    Whart.  Ind.  (2d  cd.),  §  3G7,  p.  248. 

The  judgment  is  reversed,  the  verdict  is  set  aside,  the  indict- 
ment is  quashed,  and  the  defendant  is  held  to  answer  such  bill 
as  may  be  found  against  him.    lieversed  and  remanded. 


Note  (by  H.  C.  G.) — Double  conviction  for  lurglary  and  larceny; 
distinctions  and  errors. — Under  the  statute,  burglary,  and  larceny  con- 
nected with  the  burglary,  could  be  charged  In  the  same  indictment  or 
count;  and  if  a  conviction  were  had  for  burglary,  the  party  might  also 
be  convicted  of  the  larceny,  and  for  such  burglarious  larceny  the  pen- 
alty was  not  less  than  two  nor  more  than  five  years.  Where  the  court 
failed  to  instruct  the  Jury  as  to  what  should  be  done  in  case  they 
should  convict  of  one  offense  only,  it  was  held  to  be  error;  for  if  the 
jury  should  acquit  of  the  burglary  and  convict  of  larceny,  then  the 
larceny  would  be  under  the  general  statute,  and  would  be  either  grand 
or  petit  larceny,  and  should  be  punished  accordingly.  In  the  case  con- 
sidered, the  value  of  the  property  would  have  made  it  petit  larceny, 
and  the  jury  should  have  been  instructed  as  to  cover  such  contin- 
gencies,     late  V.  Brinckley,  146  Mo.  37,  47  S,  W.  Rep.  793  (1898). 


i 


Roberts  v.  Tereitoby. 


8  Okl.  326—57  Pac.  Rep.  840. 

Decided  June  15.  1599. 

Burglary:   Entrapment — Collusion  and  connivance  of  owner — Decoy. 

Appellant,  seventeen  years  of  age,  along  with  his  brother  and  quon- 
dam bartender  of  the  owner,  went  to  a  saloon  one  night,  and  ap- 
pellant was  convicted  of  burglary.    It  appeared  from  the  evidence 
You  XI  - 13 


194 


AMERICAN  CRIMINAL  REPORTS. 


of  the  owner  that  he  had  some  arrangement  with  the  bartender 
by  which  he  was  to  come  with  the  boys.  And  It  appeared  from 
appellant's  evidence  that  he  and  his  brother  were  induced  to  go 
to  the  saloon  by  the  representations  of  the  bartender,  that  it 
would  be  all  right,  and  that  a  window  was  left  open  for  them, 
and  that  they  could  get  some  whiskey.  Held,  that  the  Inducement 
and  consent  of  the  agent  of  the  owner  was  the  inducement  and 
consent  of  the  owner;  that  there  was  no  burglary,  and  that  the 
methods  used  to  entrap  appellant  were  reprehensible. 

Error  to  the  Custer  County  District  Court;  J.  C.  Tarsnoy, 
Judge.    Conviction  for  burglary.    Koversed. 

H.  S.  Cunningham,  Atty.  Gen.,  /.  T.  Shive,  Co.  Atty.,  and 
Eoy  Hoffman,  for  the  Territory. 

Grigsby  &  Pearl  and  W.  A.  Maurer,  for  the  plaintiff  in  error. 

McAtee,  J.  One  of  the  grounds  stated  in  the  motion  for  a 
new  trial  was  that  the  court  had  committed  error  upon  the  trial 
of  the  cause,  and  that  the  verdict  of  the  jury  was  contrary  to  the 
law  and  the  evidence.  The  action  of  the  court  here  complained 
of  was  upon  a  demurrer  to  the  testimony  introduced  by  the 
prosecution  upon  the  ground  that  it  did  not  prove  the  guilt  of 
the  defendant,  and  because  the  witness,  Ben  Bullard,  who  owns 
the  building,  and  the  goods  ".a  the  building,  charged  in  the  in- 
dictment, had  made  and  entered  into  an  agreement  with  one 
Dick  Shriver  to  bring  the  defendant  there  and  go  into  the  saloon, 
and  that  Bullard  could  not  make  a  break  into  his  own  building, 
and  that,  if  he  gave  Shriver  authority  to  do  so,  there  was  no 
breaking  in. 

It  appeared  from  the  testimony  on  the  part  of  the  prosecution 
thnt  Bullard  was  the  occupant  of  the  saloon  building  in  which 
•  -^  burglary  was  charged  to  have  been  committed;  that  he  was 
^D'^rmed  by  one  Dick  Shriver  that  the  defendant,  Roberts,  and 
V  brother,  Bert  Roberts,  were  going  to  break  in  there,  and  that 
Sliriver  told  Bullard  about  it,  and  that  Bullard  told  Shriver  to 
find  out  if  he  could,  what  night  it  was,  and,  when  he  had  found 
out,  to  let  him  (Bullard)  know;  that  afterwards  Shriver  in- 
formed Bullard  that  "to-morrow  night  the  boys  were  coming  to 
break  in,  and  I  am  going  with  them ;"  and  that  finally  Bullard 
told  him  that  it  would  be  "all  right."-  It  appeared  from  the 
cross-examination  of  Bullard  that  Shriver  had  at  times  kept  bar 


ROBERTS  V.  TERRITORY. 


195 


for  him  in  the  -aloon,  and  under  cross-examination  lie  testified 
as  follows : 

"Question.  And  you  told  Shriver  it  would  be  all  right  for 
him  to  bring  them  (the  Roberts  boys),  and  go  into  the  house? 
Answer.  Not  at  that  time.    Not  at  the  first  time. 

"Q.  Did  you  tell  him  that  at  any  time  before  the  breaking? 
A.  He  said  they  would  break  in  whether  he  came  or  not. 

"Q.  And  then  you  told  him  that  it  would  be  all  right  if  he 
went  along  with  them  and  broke  in  ?  A.  No,  sir ;  I  only  told 
him  that  it  would  be  all  right." 

The  defendant  testified:  That  at  the  time  of  the  alleged 
breaking  he  was  seventeen  years  of  age.  That  he  had  known 
Dick  Shriver  for  about  a  year  and  a  half,  and  that  he  (Shriver) 
had  kept  bar  for  Bullard  "off  and  on."  That  on  the  night  of 
the  alleged  breaking  "he  left  there  to  go  to  the  dance,  and  in- 
tended to  go  around  by  our  father's  place,  so  that  my  brother 
could  change  his  clothes;  and  we  got  on  our  horses,  and  Dick 
says,  'We  haven't  got  enough  whisky;  we  will  go  and  get  some;' 
and  he  says,  'The  window  is  left  open  for  my  benefit ;'  and  we 
says  to  him,  *If  there  is  no  danger,  we'll  go,'  and  he  says,  'Well, 
just  walk  up  there;'  and  we  started  to  go  to  the  back  entrance, 
and  the  window  was  raised  two  or  three  inches.  There  was  no 
prizing  or  anything  of  that  kind  at  all." 

"Question.  How  did  the  window  get  up  higher?  Answer. 
The  boys,  I  suppose,  raised  the  window  higher." 

And  that  Shriver  had  told  the  defendant  and  his  brother  that 
the  window  was  left  open  for  his  benefit,  and,  of  course,  "we 
thought  it  was  all  right,"  and  that,  at  the  time  of  the  breaking, 
Shriver  was  living  with  Ben  Bullard. 

This  testimony  was  uncontradicted.  The  name  of  Dick 
Shriver  was  indorsed  upon  the  indictment  as  one  of  the  wit- 
nesses Avho  had  been  presented  before  the  grand  jury.  It  ap- 
peared from  the  evidence  that  Shriver  was  present,  outside  of  the 
court-house,  after  the  beginning  of  the  court  on  the  day  of  the 
trial.  He  was  a  most  important  witness  for  the  Territory,  The 
testimony  of  the  defendant  to  the  effect  that  Shriver  stated  that 
he  was  living  with  Bullard  at  the  time  of  the  alleged  burglary, 
and  was  authorized  to  enter  the  saloon,  and  that  the  window 
was  partly  raised  for  that  purpose,  remained  uncontradicted. 


;1 


!     : 


■;  1 


H 


KM-        '^' 


196 


AMERICAN  CRIMINAL  REPORTS. 


' 


It  is  manifest  from  the  testimony  that  Shriver  was  himsolf  au- 
thorized by  Bulhu'd  to  return,  and  to  enter  the  saloon  in  the 
manner  ^vhich  was  shown  by  the  testimony, — that  is,  by  raising 
the  window  of  the  saloon, — and  that  the  purpose  of  this  permis- 
sion was  to  apprehend  the  defendant  and  his  brother  in  the  act 
of  entering  the  saloon  with  Shriver,  if  they  should  do  so.  The 
fact  that  Shriver  was  at  the  time  living  with  Bullard,  and  had 
at  times  tended  bar,  was,  we  think,  sufficient  to  justify  the  de- 
fendant in  relying  upon  his  (Shriver's)  statement  that  the  win- 
dow had  been  left  open  for  him,  and  that  he  was  authorized  to 
enter  the  saloon  at  that  time  and  by  that  means.  Shriver  was 
present  about  the  court-house.  It  was  within  the  power  of  the 
Territory  to  place  him  upon  the  witness  stand  and  to  contradict 
this  testimony  of  Roberts.    This  it  failed  to  do. 

It  was  said  in  the  case  of  People  v.  McCord,  decided  in  the 
Supreme  Court  of  :\[ichigan  (7G  Mich.  200),  42  N.  W.  Rep. 
HOG,  that:  "Possibly  (but  we  do  not  care  to  decide  this)  Icav 
ing  temptation  in  the  way,  without  further  inducement,  will  not 
destroy  the  guilt,  in  law,  of  the  person  tempted,  although  it  is 
a  diabolical  business,  which,  if  not  punishable,  probably  ought 
to  be.  But  it  would  be  a  disgrace  to  the  law,  if  a  person  who  has 
taken  active  measures  to  persuade  another  to  enter  his  premises 
and  take  his  property,  can  treat  the  taking  as  a  crime,  or  qualify 
any  of  the  acts  done  by  invitation  as  criminal.  What  is  au- 
thorized to  be  done  is  no  wrong,  in  law,  to  the  instigator."  And 
in  this  case  it  was  said  that  the  instigator  or  detective  was  ac- 
tive in  the  matter,  and  that  the  circumstances  were  such  as 
would  exonerate  him  and  his  victim  from  criminal  responsi- 
bility, and  that,  "if  the  transaction  which  is  the  basis  of  the 
prosecution  was  actually  dosig-ned  as  it  was  actually  expected  by 
the  persons  in  the  store,  they  deserve  something  more  than 
censure  for  such  a  scheme."  The  court  in  that  case  said  also 
that:  "It  is  not  edifying,  when  persons  who  would  be  horriiied 
at  being  classed  among  criminals,  forget  their  legal  duties,  and 
imagine  that  any  end  can  justify  bad  means.  The  conviction 
must  be  set  aside,  and,  upon  the  record  as  it  stood  when  the  case 
went  to  the  jury,  we  cannot  see  how  they  could  have  convicted 
the  prisoner,  under  the  correct  view  of  the  law." 

And  it  was  said  in  2  East,  P.  C.  GGO,  that  no  felony  was 


ROBERTS  V.  TERRITORY. 


197 


proven,  since  tlio  whole  thing  was  done  with  the  knowledge  and 
assent  of  ^Ir.  liolton,  and  that  the  acts  of  Phillip,  the  servant, 
were  his  acts.  We  think  that  these  remarks  are  applicable  t(^  the 
facts  in  this  case.  The  evidence  showed  that  Shriver  had  been 
used  and  relied  upon  as  the  detective;  that  he  had  acted  as  a 
decoy,  and  had  induced  the  defendant  to  enter  the  saloon,  and 
we  think  that  the  defendant  should  not  have  been  convicted  of 
burglary  therefor,  and  that  the  inducement  and  consent  of 
Shriver  were  the  inducement  and  consent  of  Bullard;  ani'  wo 
think  that  the  trial  court  should  have  sustained  the  motion  for 
a  new  trial.  People  r.  McCord  (70  :Mich.  200),  42  X.  W.  Eep. 
HOG;  Spelden  v.  Staie,  30  Am.  Rep.  12G. 

The  judgment  of  the  lower  court  is  therefor  reversed,  and  the 
cause  remanded.    All  of  the  justices  concurring. 


Note  (by  H.  C.  G.).— In  the  case  of  People  v.  McCord,  76  Mich.  200, 
above  cited,  the  evidence  was  that  defendant  with  one  Flint  entered 
a  store  at  night  where  four  men  awaited  them,  who  shot  and  terribly 
beat  McCord.  Flint  admitted  that  he  was  acting  under  directions  of 
the  proprietors  in  taking  McCord  there.  It  seems  that  Flint  had  gone 
around  with  McCord  to  saloons  nearly  every  night  preceding  this 
night;  and  that  on  this  night  McCord  was  seen  in  a  drunken  condition 
going  towards  his  home  when  he  was  intercepted  by  Flint;  and  that 
he  expressed  his  desire  to  go  home,  but  that  Flint  stuck  to  him,  taking 
him  around  for  further  dissipation,  and,  as  McCord  testified,  finally 
prevailed  upon  him  to  go  with  him  to  the  store.  The  Supreme  Court 
reasoned  that  it  would  be  absurd  to  say  that  Flint  was  guilty  of  bur- 
clary,  when  he  was  simply  acting  the  part  planned  by  the  owners; 
and  that  as  McCord  seemed  to  be  simply  aiding  and  abetting  Flint  in 
carrying  out  the  design,  if  Flint  was  not  guilty  McCord  could  not  be 
guilty.  The  court  not  only  denounced  the  scheme  as  a  disgraceful  con- 
trivance to  induce  a  man  to  commit  crime  in  order  to  convict  him,  but 
severely  condemned  the  brutal  assault  upon  McCord  as  needless,  cow- 
ardly and  atrocious,  and  remarked  that  if  his  injuries  had  proved 
fatal,  his  assailants  would  have  found  it  to  be  a  very  serious  matter. 

See  this  case  with  note  on  detectives  and  others  acting  as  "decoys," 
8  American  Criminal  Reports,  pp.  117-126. 


198 


AMERICAN  CRIMINAL  REPORTS* 


l::  )•■ 

,  i-' 

Ig..,  -..   : 


State  v.  Rigos. 

74  Minn.  460—77  N.  W.  Rep.  302.. 

Decided  December  6,  1898. 

Bcrgiaby:  Evidence  insufficient  to  convict. 

Where  an  Intoxicated  person  violently  forces  hla  way  into  a  social 
club  room  and  saloon  where  he  had  been  accustomed  to  go,  and 
of  which  he  had  been  a  member,  for  the  purpose  of  getting  liquor, 
knowing  that  there  were  persons  within,  without  an  intention 
to  steal  or  commit  a  crime  therein,  although  very  disorderly  and 
boisterous  therein,  he  Is  not  guilty  of  burglary. 

Appeal  from  the  District  Court  for  Wright  County ;  Tarbox, 
Judge.    Reversed. 

Ashley  C.  Riggs,  being  convicted  of  burglary,  appeals. 

W.  H.  Cutting,  for  the  appellant. 

H.  W.  Childs,  Atty.  Gen.,  and  George  B.  Edgerton,  for  the 
State. 

Collins,  J.  Defendant  was  convicted  of  the  crime  of  burg- 
lary in  the  third  degree,  and  sentenced  to  State's  prison  for  tlio 
period  of  three  years.  He  appeals  from  the  judgment,  and 
makes  a  number  of  assignments  of  error.  We  pass  by  all  ex- 
cept the  last,  which  is  that  the  verdict  is  contrary  to  law  and  is 
not  justified  by  the  evidence. 

In  our  opinion  the  judgment  of  conviction  must  be  reversed, 
as  wholly  unwarranted.  From  the  evidence  it  appears  that  the 
''Monticello  Social  Club"  occupied  a  room  in  a  builvling  in  the 
village  of  Monticello,  fitted  up  as  is  the  ordinary  saloon,  in 
Avhich  liquors  and  cigars  were  sold  or  disposed  of.  One  Allen 
was  in  charge,  as  the  secretary  of  the  club,  and  a  man  named 
Machtel  slept  in  the  room  every  night. 

Defendant  Riggs,  twenty-four  years  of  age,  who  had  resided 
in  this  village  all  of  his  life,  had  been  a  member  of  this  club  up 
to  a  few  hours  before  he  was  arrested  on  the  charge  of  burglary. 
He  seems  to  have  then  ceased  to  be  a  member,  because  the 
amount  deposited  by  him  had  been  "withdrawn"  from  time  to 
time.  He  was  in  this  room  all  of  the  evening,  and  was  evidently 
drunk,  and  somewhat  disorderly  when  Allen  locked  the  front 


STATE  V.  RIGOa 


199 


door,  about  nine  o'clock.  Iliggs  then  went  out  the  back  door. 
Allen  started  towards  his  homo,  hut,  returning,  lay  down  near 
the  back  door.  !Machtel  was  left  in  the  room.  He  went  to  be<l, 
leaving,  as  he  said,  the  light  turned  partly  down. 

AMiat  occurred  subsequently  was  fairly  stated  by  the  court  in 
its  charge,  in  substance  as  follows :  Riggs  came  back  with  Hal- 
lett,  a  brother-in-law,  and  knt)cked  at  the  back  door.  Both  went 
away,  and,  returning  together,  Riggs  kicked  or  knocked  a  hole 
in  the  door.  They  then  left,  but  soon  afterwards  Riggs  returned, 
and  crawled  into  the  room  through  this  hole.  Machtel  then 
turned  the  light  up,  and  Riggs  crawled  outside.  He  soon 
knocked  on  the  door  again,  Machtel  opened  it,  and  Riggs  stepped 
in,  closely  followed  by  Allen.  The  latter  went  for  an  officer,  and 
Riggs  remained  in  the  room  until  he  was  arrested,  about  eleven 
o'clock  at  night.  It  was  shown  that  he  was  very  disorderly 
while  Allen  was  looking  for  an  officer;  that  he  had  a  revolver, 
f<liot  into  the  floor,  and  made  threats  against  Allen  Avith  whom  he 
had  had  a  previous  difficulty.  It  was  also  shown  that,  upon 
leaving  the  room  for  the  first  time  that  evening,  Riggs,  accompa- 
nied by  Ilallett,  went  to  a  brother's  house  near  by,  and  there 
borrowed  fifty  cents  for  the  avowed  purpose  of  returning  to  the 
room  for  a  bottle  of  whiskey. 

It  seems  to  a  majority  of  the  court  that  a  monstrous  injustice 
was  conniiittcd  when,  on  this  evidence,  Riggs  was  convicted  of 
the  crime  of  burglary.  AVe  are  unable  to  find  a  particle  of  evi- 
dence tending  to  show  that  he  broke  int<  this  building  with  an 
intent  to  take,  steal  or  carry  away  the  money,  goods  or  chattels 
(if  another  person.  He  was  drunk,  and  wanted  more  liquor.  Ho 
had  borrowed  money  with  whicli  to  buy  another  bottle.  He  de- 
manded that  the  door  be  opened,  and  then,  in  an  ugly  drunken 
mood,  kicked  in  the  door  because  his  demand  was  not  complied 
witJi.  He  knew  that  either  Allen  or  Machtel^  or  both,  were  in  the 
room,  and  if,  as  testified  to  by  them,  but  denied  by  Riggs,  he 
crawled  in  through  the  hole  in  the  door,  it  was  not  with  an  in- 
tent to  steal. 

Burglaries  are  not  attempted  or  committed  in  the  manner  in- 
dicated by  this  evidence,  and  the  conduct  of  both  Allen  and 
!Machtel  shows  conclusively  that  they  did  not  for  a  moment  sup- 
pose that  Riggs  was  a  burglar.    Evidently  they  regarded  him  as 


•M^ 


K  :r'  H 


200 


AMERICAN  CRIMINAL  REPORTS. 


a  drunkt'ii  nnvdy,  nnd,  in  that,  tlicy  were  right.    ITo  should  havo 
hoeii  i>uiiish(>d  as  drunk  mid  disurdcily,  not  a^  a  hurglnr. 

Tilt'  judgiiiciit  irt  r('vt'rs(>d,  mid  tlio  court  holow  ordered  to  dls- 
iiiisis  the  iiidii'tiiieiit  and  discharge  tlie  defendant. 

Canty,  J.  (disHenting).  I  cannot  concur  in  the  foregoing 
opinion.  This  court  has  no  right  to  assume  that  defeii<hint  knew 
that  any  one  was  in  the  saloon  when  he  kicke*!  in  tlie  door. 

The  c".  Mence  tends  to  prove  that  about  eleven  o'clock  at  night, 
in  company  with  his  brother-in-law,  ho  cnnie  to  the  back  door 
of  the  place,  knocked,  and  listened  several  times,  but  received 
no  answer.  Then  ho  svore,  and  threatened  to  brcidv  in  and  get 
what  he  wanted.  The  place  had  already  been  ch)sed  for  the 
night.  A  witness  who  was  concealed  in  an  outhouse  near  1)V 
testified  that  defendant  said:  "I  am  goi,.g  to  have  what  1  want 
out  of  there."  '^I  am  going  to  get  in  there,  and  get  what  I 
want."  Then  he  broke  in  the  ])anels  of  the  door,  stopped  and 
listened,  ran  away,  returned  in  a  few  moments  nnd  crawled 
through  the  hole  in  the  dcjor.  A  pers<m  sleeping  on  the  insido 
turned  up  the  light,  and  defendant  went  back  and  crawled  out 
through  the  hole  in  the  door.  Then  he  went  away,  returned  in 
about  fifteen  minutes,  again  knocked  on  the  door,  and  was  ad- 
mitted by  the  ])erson  inside. 

While  the  evidence  that  the  defendant  intended  to  commit 
the  crime  of  burglary  is  not  altogether  satisfactory,  I  am  of  the 
opinion  that  it  sustains  the  verdict.  The  evidence  warranted  the 
jury  in  finding  that  defendant  broke  into  the  building  with 
intent  to  steal  whiskey,  beer  or  other  liquor.  The  fact  that  be 
was  somewhat  drunk  does  not  excuse  the  crime.  Sfaie  v.  ]V('Ich; 
21  :Minn.  22. 

T  am  strongly  of  the  opinion  that,  if  I  bad  been  the  trial 
judge,  I  would  never  have  given  this  defendant  such  an  excess- 
ive sentence  as  this  a])pcar3  to  be,  or  have  sentenced  him  to  the 
penitentiary  at  all.  But  we  occupy  towards  this  case  the  cold- 
blooded position  of  an  appellate  court,  and  have  no  discretion 
which  we  may  exercise  bv  showing  mercv.  In  mv  opinion,  de- 
fondant's  remedy  is  by  an  application  to  the  pardoning  power, 
and  not  by  an  appeal  to  this  court. 

NoTics  (by  J.  F.  G.). — The  desire  of  the  person  Injured,  for  revenge, 
together  with  that  of  the  State's  Attorney  to  make  a  record  as  a  vig- 


STATE   r,  niGUS. 


2>1 


oroiiB  proBefiitor,  frequently  causes  persons  guilty  of  petty  violations 
of  law  to  be  accused  and  convicted  of  grades  higher  than  the  crime 
committed.  To  this  practice,  the  opinion  of  the  majority  of  the  court 
in  the  Jiiaoa  Case  is  a  Just  rebuke,  based  on  flxed  rules  of  law,  human- 
ity,  and  abstract  Justice. 

Burglary  at  common  law  consisted  in  breaking  into  the  dwelllnR,  or 
mansion,  house  of  another,  with  intent  to  commit  a  felony.  Sir  Ed- 
ward Coke  defines  a  burglar  as,  "he  that  in  the  night  time  breakotb 
and  entereth  into  a  mansion  house  of  another,  with  intent  to  kill  some 
reasonable  creature,  or  to  commit  some  felony  within  the  same, 
whether  his  felonious  intent  be  committed  or  not."     See  3   Inst.  G3; 

1  Hale,  P.  C.  549.  Even  as  late  as  the  statute  7  ft  8  George  4,  c  29, 
s.  11,  the  punishment  for  burglary  was  death.  Neither  the  common 
law,  nor  the  statute,  contemplated  that  minor  Intrusions  and  tres- 
pas?i!S  into  even  private  dwellings  should  be  classed  as  burglaries; 
but  only  those  cases  where.  In  the  shat'.es  of  night,  the  security  of  the 
home  was  violated  for  a  felonious  purpose,  and  it  might  be  the  slum- 
bering family,  unprepared  for  resistance,  subjected  to  the  raerrileas 
titack  of  the  felon.  The  gist  of  the  offense  was  not  the  fact  of  break- 
ing into  a  dwelling-house,  even  though  done  at  an  unseemly  hour;  but 
the  breaking  for  a  felonious  purpose.  It  was  a  well-settled  rule  of  the 
common  law  that  the  dwelling-house  must  be  one  occupied  as  such; 
but  in  some  cases  the  term  "dwelling-house"  was  construed  to  cover 
outhouses  within  its  Immediate  curtilage  or  courtyard  surrounding  the 
house. 

Review  of  the  subject  by  Roscoe. — As  to  the  English  authorities  on 
tills  subject  we  adopt  the  following  clear,  concise  and  comprehensive 
revlpw  from  Roscoe's  Criminal  Evidence,  p.  280: 

If  It  appear  that  the  intent  of  the  party,  in  bieaklng  and  entering, 
was  merely  to  commit  a  trespass,  It  is  no  burglary;  as  where  the 
prisoner  enters  with  intent  to  beat  some  person  in  the  house,  even 
though  killing  or  murder  may  he  the  consequence,  yet,  if  the  primary 
Intention  was  not  to  kill,  it  is  still  not  burglary.    4  Hale,  P.  C.  561; 

2  East,  P.  C.  509.  Where  a  servant  embezzled  money  intrusted  to  his 
care,  ten  guineas  of  which  he  deposited  in  his  trunk,  and  quitted  his 
master's  service,  but  afterwards  returned,  bro'.ce  and  entered  the  house 
In  the  night,  an.1  took  away  the  ten  guineas,  this  was  adjudged  no 
burglary,  tor  he  did  not  enter  to  commit  a  felony,  but  a  trespass  only. 
Although  it  was  the  master's  money  in  right,  it  was  the  servant's  in 
possession,  and  the  original  act  was  no  felony.  Bingley's  Case,  Hawk. 
P.  C,  b.  1,  c.  38,  8.  37,  cited  2  Leach.  840,  as  Bingley's  Case,  2  East, 
P.  C.  510;  8.  c.  as  Anon.  Where  goods  had  been  seized  as  contraband 
by  an  excise  officer,  and  his  house  was  entered  in  the  night,  and  the 
goods  taken  away,  upon  an  indictment  for  entering  his  house  with  in- 
tent to  steal  his  goods,  the  jury  found  that  the  prisoners  broke  and  en- 
tered the  house  with  intent  to  take  the  goods  on  behalf  of  the  person 
who  had  smuggled  them;  and  upon  a  case  reserved,  all  the  judges 
were  of  opinion  that  the  Indictment  was  not  supported,  there  being  no 
intent  to  steal,  however  outrageous  the  conduct  of  the  prisoners  was 
in  thus  endeavoring  to  get  back  the  goods.  Knight  d-  Roffcy's  Case, 
2  East,  P.  C.  510.    If  the  Indictment  had  been  for  breaking  and  enter- 


202 


AMERICAN  CRIMINAL  REPORTS. 


ing  the  house,  with  Intent  feloniously  to  rescue  goods  seized,  that 
being  made  felony  by  statute  19  Geo.  2,  c.  34,  the  chief  baron  and  some 
of  the  other  judges  held  It  would  have  been  burglary.  But  even  in 
that  case,  some  evidence  must  be  given  on  the  part  of  the  prosecutor 
to  show  that  the  goods  were  uncustomed.  In  order  to  throw  the  proof 
upon  the  prisoners  that  tha  duty  was  paid;,  but  their  being  found  In 
oil-cases,  or  in  great  quantities  In  an  unentered  place,  would  have  been 
sufficient  for  this  purpose.  2  East  P.  C.  510.  The  prisoner  was  in- 
dicted for  breaking,  etc.,  with  intent  to  kill  and  destroy  a  gelding  there 
being.  It  appeared  that  the  prisoner,  in  order  to  prevent  the  horse 
from  running  a  race,  cut  the  sinews  of  his  fore-legs,  from  which  he 
died.  Pratt,  C.  J.,  directed  an  acquittal,  the  Intent  being  not  to  com- 
mit felony  by  killing  and  destroying  the  horse,  but  a  trespass  only  to 
prevent  its  running,  and  therefore  it  was  no  burglary.  But  the  pris- 
oner was  afterwards  indicted  for  killing  the  horse,  and  capitally  con- 
victed. Dobb's  Case,  2  East  P.  C.  513.  Two  poachers  went  to  the  house 
of  a  game-keeper,  who  had  taken  a  dog  from  them,  and,  believing  him 
to  be  out  of  the  way,  broke  the  door  and  entered;  being  indicted  for 
this  as  a  burglary,  it  appearing  that  their  intention  was  to  rescue  the 
dog,  and  not  to  commit  a  felony,  Vaughan,  B.,  directed  an  acquittal. 
Ation.,  Matth.  Dig.  C.  L.  48.    See  HoUoicay's  Case,  5  C.  &  P.  524. 

General  doctrine  regarding  specific  criminal  intent. — When  the  crime 
does  not  consist  simply  in  the  act,  but  in  the  act  with  a  particular 
intent,  or  where  the  attempt  to  commit  an  act  with  a  wrongful  Intent 
is  made  a  crime,  no  conviction  can  be  had  unless  the  evidence  shows 
the  existence  of  such  intent.  This  doctrine  is  well  illustrated  by  the 
case  of  Keeton  v.  Commonicealth,  92  Ky.  522,  18  S.  W.  Rep.  359.  In 
that  case  the  accused  was  convicted  on  two  Indictments  for  robbery, 
he  having,  while  in  an  intoxicated  condition,  on  his  way  home  from  a 
picnic,  accosted  two  persons  with  whom  he  had  been  on  friendly 
terms,  and,  presenting  a  pistol,  compelled  them  to  deliver  to  him  their 
m'^roy  and  watches;  but  he  made  no  effort  to  conceal  the  property, 
ai. '  on  becoming  sober  caused  it  to  be  returned  to  the  owners.  The 
testimony  as  to  his  mental  condition  was  excluded  by  the  trial  court 
on  the  theory  that  voluntary  intoxication  is  no  defense  to  an  accusa- 
tion for  a  crime  committed  by  such  intoxicated  person;  but  the  court 
of  appeals,  reversing  the  conviction,  says:  "A  distinction  is  plainly 
drawn  between  cases  where  the  act  done  constitutes  the  offense  and 
cases  where  there  must  be  combined  with  the  act  done  the  intent  of 
the  accused  in  order  to  constitute  the  offense.  For  instance,  where  one 
kills  another,  the  act  done  constitutes  the  offense;  but  when  one  takes 
the  property  of  another,  to  make  it  larceny  a  felonious  Intent  must  be 
shown,  and,  while  this  may  be  inferred  from  the  character  of  the  tak- 
ing, the  defense  may  show  that  he  was  unconscious  at  the  time,  or 
too  drunk  to  have  any  intent.  Roberts  v.  People.  19  Mich.  401;  People 
V.  WaJh-er,  38  Mich.  15G;  People  v.  Harris,  29  Cal.  G78;  Wood  v.  State, 
34  Ark.  341.  His  drunkenness  would  be  no  defense  to  an  indictment 
for  an  assault,  because  the  act  of  presenting  the  pistol  constitutes  the 
offense  and  the  question  of  intent  would  not  be  involved.  The  evidence 
offered  should  have  gone  to  the  Jury." 


STATE  V.  RIGGS. 


203 


In  State  v.  Bell,  29  Iowa,  316,  tie  defendant  on  trial  for  burglary 
asked  the  court  to  give  the  following  Instruction:  "If  you  find  from  the 
evidence  that,  at  the  time  the  defendant  was  found  in  the  house,  he 
was  drunlc  and  got  there  through  drunkenness,  without  knowing  where 
he  was,  and  with  no  intent  to  steal  or  commit  crime,  then  you  should 
acquit."  The  refusal  of  this  instruction  was  held  to  be  prejudicial 
error,  there  being  evidence  that  the  defendant  was  grossly  drunk  at 
the  time  that  he  went  into  and  occupied  a  neighbor's  house. 

In  Chrisman  v.  State,  54  Ark.  283,  15  S.  VV.  Rep.  889,  in  reversing 
a  conviction  of  assault  with  intent  to  commit  murder,  the  court  said: 
"We  do  not  think  it  necessary  to  review  on  this  appeal  the  other  rul- 
ings of  the  circvit  court  complained  of  by  the  defendant.  But,  as  the 
cause  must  be  remanded,  we  think  it  proper  to  say  that,  although  vol- 
untary drunkenness  cannot,  as  the  jury  were  told  by  the  court,  ex- 
cuse the  commission  of  a  criminal  act,  yet,  where  a  person  is  accused 
of  a  crime  such  as  can  be  committed  only  by  doing  a  particular  thing 
with  a  specific  intent,  it  may  be  shown  that,  at  the  time  of  doing  the 
thing  charged,  the  accused  was  so  drunk  that  he  could  not  have  enter- 
tained the  intent  necessary  to  constitute  the  offense.  1  Bish.  Crim. 
Law,  §  413.  Then  in  Wood's  Case,  34  Ark.  341,  it  was  held  that  'if  one 
at  the  time  of  taking  property  is  so  under  the  influence  of  intoxicating 
liquor  that  a  felonious  intent  cannot  be  formed  in  his  mind,  he  is  not 
guilty  of  larceny.' " 

In  Schwahacher  v.  People.  165  111.  618,  46  N.  E.  Rep.  809,  in  revers- 
ing a  conviction  for  perjury,  the  court  said:  "It  is  undoubtedly  true 
that  at  common  law  drunkenness  was  no  excuse  for  crime;  nor  is  it 
under  the  statute,  except  as  therein  provided.  But  where,  as  under 
the  indictment  in  this  case,  it  is  necessary  to  prove  a  specific  intent 
before  a  conviction  can  be  had,  it  is  competent  to  prove  that  the  ac- 
cused was  at  the  time  wholly  incapable  of  forming  such  intent,  whether 
from  intoxication  or  otherwise.  The  breaking  and  entering  the  house 
in  the  night  time  alone  did  not  constitute  the  crime  of  burglary,  but 
it  was  necessary  to  prove  that  the  act  was  done  with  the  specific  Intent 
alleged  in  the  indictment, — that  is,  to  steal  the  goods  and  chattels 
therein  of  Mrs.  Bell." 

In  Bartholomew  v.  People,  104  111.  601,  the  court  said:  "At  common 
law.  where  it  required  a  particular  intent  in  doing  an  act  to  constitute 
(rime, — as,  for  instance,  larceny,  where  the  intent  to  steal  must  accom- 
pany the  act  of  taking, — it  was  held  it  may  be  shown  in  defense  that 
the  i)arty  charged  was  intoxicated  to  that  degree  that  he  was  incapa- 
l)lo  of  entertaining  the  intent  to  steal,  and  that  neither  he  then,  nor 
afterwards,  ..  lelded  assention  of  his  will."  Citing  1  Bishop  on  Crim. 
Law  (3d  ed.),  sec.  490;  United  States  v.  Routenbush,  1  Baldw.  517; 
Siro/i  V.  Slate,  4  Humph,  136;  Pigman  v.  State,  4  Ohio,  555;  Kessey  v. 
State.  3  S.  &  M.  518;  1  Wharton's  Crim.  I^w  (7th  ed.),  sec.  41. 

In  the  case  of  Croshy  v.  People.  137  111.  325,  27  N.  E.  Rep.  49,  the 
court  said:  "Drunkenness  was.  therefore,  at  common  law,  as  under 
our  own  statutes,  no  excuse  for  crime;  but  where  the  nature  and  es- 
sence of  the  offense  is,  by  law,  made  to  depend  upon  the  state  and  con- 
dition of  the  mind  of  the  accused  at  the  time,  and  with  reference  to 


m  ■ 


,1 


204 


AMERICAN  CRIMINAL  REPORTS. 


\W 


'Hi 


i    ij 


m    '  !fl 


i 


the  acts  done  and  committed,  drunkenness,  as  a  fact  affecting  the  con- 
trol of  the  mind,  Is  proper  for  the  consideration  of  the  jury,  for  if  the 
act  must  be  committed  with  a  specific  intent  to  constitute  the  crime 
charged,  and  the  defendant  Is  incapable  of  forming  any  Intent  what- 
ever, the  offense  has  not  been  committed." 

In  Lyle  v.  State,  31  Tex.  Crlm.  Rep.  103,  19  S.  W.  Rep.  903,  a  con- 
viction for  perjury  in  testifying  that  no  gambling  had  occurred  at  a 
certain  time  and  place  was  reversed.  The  defense  was  that  the  ac- 
cused at  the  time  of  the  gambling  was  Intoxicated.  In  reversing  the 
conviction  the  court  said:  "The  court  should  have  Instructed  the  jury 
that  they  might  consider  this  evidence  with  all  of  the  other  testimony 
In  the  case  for  the  purpose  of  determining  whether  the  defendant  knew 
the  game  was  played,  or  whether  at  the  time  he  made  the  statement 
he  remembered  having  seen  the  game  played,  if  In  fact  he  did  see  It." 

In  People  v.  Harris,  29  Cal.  678,  the  defendant  was  Indicted  and  con- 
victed for  voting  twice  at  one  election.  The  conviction  was  reversed 
because  the  court  excluded  evidence  of  intoxication,  such  evidence 
being  admissible  to  prove  that  at  the  second  voting  the  defendant  was 
not  conscious  that  he  had  previously  voted  on  the  same  day. 

In  Lytle  v.  State.  34  Ohio  St.  196,  a  conviction  for  testifying  falsely 
regarding  a  certain  assault  was  reversed  because  the  trial  court  had 
excluded  evidence  tending  to  show  that  the  defendant  at  the  time  of 
the  assault  was  very  drunk.  In  reversing  the  conviction  the  court  re- 
marked that  It  was  well  known  that  some  people  were  rendered  ob- 
livious to  their  surroundings  by  intox'oation,  and  ti;at  others  were 
partially  incapacitated,  so  that  they  were  incapable  ol  seeing  things 
in  their  true  relation,  and  often  conceived  distorted,  In^^orrect  and  Im- 
perfect ideas  of  what  transpired  around  them. 

In  Roberts  v.  People,  19  Mich.  401,  a  conviction  for  assault  with  In- 
tent to  commit  murder  was  reversed  because  the  court  beiaw  refused 
to  instruct  the  jury  that  Intoxi' ntion  of  the  defendant  was  proper  to 
be  considered  in  determining  whether  or  not  he  entertained  an  Intent 
to  commit  murder. 

In  Wilson  V.  State  (Tex.),  19  S.  W.  Rep.  255,  a  con^ctlon  of  wil- 
fully driving  away  a  calf  was  reversed  because  the  evidence  did  not 
show  a  criminal  intent.  The  accused  and  his  hired  man  were  hunting 
catle.  The  accused  found  a  cow  and  calf  of  his  own  and  a  motherless 
calf  sucking  the  cow.  He  told  the  hired  man  to  drive  them  all  home,  re- 
marking that  If  the  owner  came  he  could  get  It,  but  If  not  the  cow 
might  raise  It  and  keep  it  from  dying.  The  calf  remained  at  the 
accused's  place  about  ten  days,  no  effort  being  made  to  conceal  it  and 
no  claim  of  ownership  asserted.  When  the  owner  claimed  It  the  ac- 
cused told  him  he  could  come  and  get  It,  etc.  In  reversing  the  convic- 
tion the  court  said:  "With  the  exception  of  the  difference  in  their  re- 
spective statements  as  to  what  passed  In  this  conversation,  there  Is 
no  evidence  In  the  record  inconsistent  wi<:h  or  contradictory  of  the 
defendant's  own  testimony,  and  the  question  presented  is  whether  or 
not  the  acts  show  a  violation  of  the  statute.  Was  the  driving  away 
wilfully  done?  Was  the  calf  removed  from  his  accustomed  range  with 
evil  intent,  and  without  reasonable  grounds  to  believe  the  act  to  be 


I 


4 


STATE  V.  KIGUS. 


iiU5 


lawful?    We  are  of  opinion  that  It  was  not.    Thomas  v.  State,  14  Tex. 
App.  200.    The  judgment  is  reversed  and  the  cause  remanded." 

In  the  case  of  State  v.  Brown,  104  Mo.  365,  16  S.  W.  Rep.  406,  a  con- 
viction for  robbery  was  reversed  because  the  trial  court  failed  to  in- 
struct the  jury  that  no  conviction  could  be  had  for  robbery  unless  the 
jury  And  from  the  evidence  that  the  defendants  took  the  money  with 
felonious  intent.  In  that  case  the  defendants  denied  that  force  was 
used;  but  it  was  admitted  that  a  five  dollar  bill  was  talien  or  jerked 
from  the  hand  of  the  prosecuting  witness,  he  being  indebted  to  one 
of  the  defendants  for  the  loan  of  a  dollar.  The  court  in  reversing 
the  conviction  says:  "Robbery  is  compounded  of  larceny  and  force. 
The  defendants  were  not  guilty  of  robbery  unless  they  took  the  money 
from  the  prosecuting  witness  without  an  honest  claim  to  it,  or  any  o£ 
it,  and  with  the  intent  to  deprive  him  of  the  ownership  therein." 

In  Nelson  v.  State  (Tex.),  26  S.  W  Rep.  623,  a  conviction  for  a  theft 
was  reversed,  the  opinion  of  the  cour"  being  in  part  as  follows: 

Sim  KINS,  J.  Appellant  was  convictt  d  of  theft,  and  his  punishment 
assessed  at  two  years  in  the  peniteatiary.  Appellant  was  indicted  in 
three  counts,  charging  robbery,  emljezzlement,  and  theft  of  over  $20. 
Upon  trial  the  State  dismissed  as  to  the  first  two  counts.  The  facts 
show  that  appellant  was  confined  on  the  county  farm  for  gambling; 
that  one  evening  in  April,  1893,  appellant  approached  the  guard,  one 
Cummins,  under  the  pretense  of  borrowing  his  knife,  and  seized  him, 
crying  out:  "Come  on,  boys.  Now  is  the  time  to  get  our  liberty," — 
and,  assisted  by  other  convicts,  disarmed  the  guard,  one  of  the  con- 
victs taking  his  gun,  and  appellant  his  pistol;  and  they  left  him  lying 
bucked  and  gagged,  and  escaped.  The  gun  and  pistol  were  subsequently 
recovered  from  persons  to  whom  the  appellant  ^aid  they  were  delivered 
to  be  returned.  The  witness  Cummins  states  that  the  appellant  used 
great  violence  to  him,  and  they  took  away  his  gun  and  pistol  by  force. 
The  witness  was  considerably  frightened,  and  believes  they  would 
have  killed  him  if  he  had  offered  more  resistance  than  he  did.  If  a 
fraudulent  intent  has  been  proven  in  this  case,  then  the  crime  com- 
mitted was  robbery,  and  not  theft;  for  all  the  distinct  modes  by  which 
rol)bery  may  be  committed  are  to  be  found  herein.  The  property  was 
certainly  taken  by  assault,  by  violence  on  the  person,  by  putting  in 
fear  of  life  or  bodily  injury.  Willson's  Cr.  St.,  §  1246.  But  the  State 
dismissed  as  to  the  robbery,  presumably  on  the  ground  that  it  could 
not  prove  the  fraudulent  intent,  but  conceded  that  the  violence  used 
by  the  convicts  to  the  guard  Cummins  was  for  the  purpose  of  gaining 
their  liberty,  and  not  to  obtain  and  appropriate  his  property.  Appel- 
lant, taking  the  stand  as  a  witness,  testified  that  before  leaving  the 
county  they  placed  the  weapons  in  the  hands  of  friends,  to  be  returned 
to  the  owner.  There  is  nothing  contradicting  this  statement  in  the 
record,  except  that  the  person  to  whom  the  pistol  was  delivered  sold 
it  for  a  small  amount,  which  the  owner  had  to  repay,  for  which  sale 
appellant  could  hardly  be  held  responsible  In  this  case.  It  certainly 
does  not  appear  that  they  appropriated  the  arms  to  their  own  use  and 
benefit.  In  this  connection,  the  record  shows  the  jury  requested  fur- 
ther instructions  on  the  question  as  to  what  length  of  time  the  prop- 


■•il 


I'ip 


■U 


f 


206 


AMERICAN  CRIMINAL  REPORTS. 


erty  charged  to  have  been  stolen  must  be  In  the  possession  of  the  party 
taking  it  to  constitute  theft.  The  court  answered;  "The  law  fixes  no 
length  of  time.  A  moment's  possession  is  sufflcient."  While  the  an- 
swer is  correct,  it  was  not  sufflcient  in  this  case.  The  jury  should 
have  been  told  that  a  moment's  possession  would  be  sufflcient  if  taken 
with  the  fraudulent  intent  to  appropriate  to  his  own  use  and  benefit, 
but,  if  such  intent  did  not  exist  at  the  time  of  taking,  no  subsequent 
holding  would  make  it  theft. 


H- 


|l|{ 


Thompson  v.  State. 


mk 


I 


H 


I 


117  Ala.  67—23  So.  Rep.  676. 

Decided  June  6,  1896. 

Change  of  Venue:  Public  excitement. 

A  change  of  venue  should  be  granted  where  public  feeling  against 
the  defendant  is  so  strong  that  mob  vengeance  was  prevented  by 
the  military,  and  a  special  session  of  court  convened  in  response 
to  popular  demand  for  speedy  punishment. 

Appeal  from  Circuit  Court  of  Morgan  County ;  Hon.  James 
J.  Banks,  Judge. 

Appellant,  a  negro,  was  accused  of  the  rape  of  a  white  girl 
about  twelve  and  one  half  j'ears  of  age.  He  was  arrested  on 
June  8,  1897,  and  tried  at  a  term  of  court,  called  for  his  trial, 
which  met  July  2G,  1897.  On  July  27,  1897,  he  made  applica- 
tion for  a  change  of  venue,  which  was  overruled;  being  con- 
victed, he  appealed.    Reversed. 

0.  Kyle  and  S.  T.  Wert,  for  the  appellant. 
17m.  C.  Fitts,  Atty.  Gen.,  for  the  State. 

McClei,i.an,  J.  Upon  a  careful  consideration  of  the  evi- 
dence adduced  on  the  motion  for  a  change  of  venue  in  this  case, 
the  court  is  satisfied  that  it  should  have  been  granted.  The 
crime  charged  Avas  of  a  character  to  produce  the  greatest  public 
indignation.  The  trial  was  had  within  a  short  time  after  the  al- 
leged commission  of  the  offense  came  to  the  knowledge  of  the 
public,' — as  soon  as  a  special  term  of  the  court,  called  in  obedi- 
ence to  a  public  demand  for  speedy  punishment,  could  be  con- 
vened and  held.    And  the  afiidavits  and  other  evidence  show  that 


GALLAHER  v.  STATE. 


207 


the  public  were  so  greatly  aroused  against  the  defendant  that  it 
required  the  promptest  and  most  vigorous  action  of  the  executive 
officers  of  the  State  from  the  governor  down,  and  including  the 
military,  to  protect  the  defendant  from  mob  violence  and  sum- 
mary execution ;  and,  further,  that  this  state  of  feeling  continued 
do^vn  to  and  through  the  trial,  and  must  have  bad  such  effect 
upon  the  jury  as  that  their  verdict  was  little  else  than  the  regis- 
tration of  the  common  belief  of  the  people  that  the  defendant 
was  guilty,  and  a  mode  of  carrying  out  the  public  purpose  to 
take  his  life.  The  trial  was  not,  and  could  not,  under  the  cir- 
cumstances then  existing,  have  been,  fair  and  impartial.  The 
court  erred  in  denying  tlie  change  of  venue  moved  for  by  de- 
fendant, and  for  that  error  its  judgment  must  be  reversed.  Of 
the  other  exceptions  reserved  many  are  palpably  without  merit, 
and  the  others  will  probably  not  arise  on  another  trial.  Reversed 
and  remanded. 


Gall  All  ER  v.  State. 

40  Tex.  Cr.  App.  296—50  S.  W.  Rep.  388. 
Decided  March  15,  1899. 


Change  of  Venue: 


Murder:    Local  prejudice — Prejudice  of  Jurors — 
Confession — "Sweat-box." 


1.  Where  nineteen   disinterested  citizens  swore  that  the  defendant 

could  not  have  a  fair  trial  in  Galveston  county,  because  of  the 
violent  and  universal  prejudice  against  him,  showing  their  means 
of  Itnowledge,  and  that  the  daily  papers  were  filled  with  articles 
and  pictures  of  a  prejudicial  character,  and  that  photographs  re- 
lating to  defendant's  alleged  guilt  were  exhibited  on  the  streets, 
and  that  the  general  expression  of  opinion  among  all  classes  of 
people  was  that  he  was  guilty  and  ought  to  be  hanged  or  lynched 
or  burned,  held,  that  it  was  an  abuse  of  discretion  in  the  trial 
court  to  deny  the  motion  for  a  change  of  venue,  notwithstanding 
that  the  sheriff,  chief  of  police  and  district  attorney  swore  that 
defendant  could  get  a  fair  trial,  and  that  there  was  not  such  gen- 
eral prejudice  against  defendant. 

2.  Where  jurors  said  they  believed  the  defendant  guilty  from  all  they 

had  heard  and  read,  but  would  acquit  him  if  he  proved  himself 
innocent,  and  in  response  to  court's  questions  said  they  believed 
they  could  give  him  a  fair  trial,  held,  that  challenge  for  cause 
should  have  been  sustained. 


:)  .  :     111! 


'r 


208 


AMERICAN  CRIMINAL  REPORTS. 


3.  A  confesFlon  obtained  by  persistently  badgering  and  teasing  the 
defendant,  several  persons  talving  turns  at  it,  In  wliat  was  cas- 
ually referred  to  as  a  "sweat-box"  examination  on  the  trial,  con- 
sidered, and  held  not  to  be  free  and  voluntary. 

Appoal  from  Galveston  Cotinty;  E.  D.  Gavin,  JndijG. 
Yirgi]  G.!^"'    v,  convicted  of  murder  in  the  first  degree,  ap- 
peals.    ll."V  ( 

D.  D.  McDonald,  XcwtonJ.  Sl-lnner,  and  Arlliur  J.  Krcelch, 
for  appollai  t. 

lluht.  A.  John,  .issihii.iii.  Attorney-General,  for  the  State. 

IIkxderson,  J.  Appellant  was  convicted  of  murder  in  the 
first  degree,  and  his  punishment  assessed  at  death. 

The  evidence  for  the  State  showed  that  appellant  waatho  son 
of  deceased,  Mrs.  Kate  II.  Gallahor,  and  that  at  the  time  of  the 
homicide  he  and  his  mother  were  living  together  in  a  house  in 
Galveston,  alone;  that  on  Saturday  night,  August  15,  1S97,  ap- 
pellant entered  deceased's  room,  and  cut  her  throat  with  a  razor. 
The  corpse  of  deceased  remained  in  the  Imilding  all  the  next 
day,  which  was  Sunday.  On  the  following  night  appellant  at- 
tempted to  buni  the  house,  and,  after  several  unsuccessful  at- 
tempts, at  length  succeeded  in  setting  it  on  fire.  Before  the  fire 
had  made  great  headway,  it  was  discovered  and  extinguished. 
The  remains  were  found  partially  burned,  but  not  consumed, 
and  the  evidence  of  death  by  violence  was  apparent.  The  motive 
imputed  was  robbery.  The  State's  case  depends  on  circumstan- 
tial evidence,  in  connection  with  the  confessions  of  appellant. 
On  the  trial  appellant  relied  on  a  plea  of  not  guilty,  and  ho 
introduced  some  evidence  tending  to  show  his  insanity  or  mental 
aberration  at  the  time  of  the  alleged  homicide.  Appellant  also 
made  a  motion  for  a  change  of  venue,  and,  as  a  disposition  of 
this  case  depends  greatly  on  the  action  of  the  court  in  regard  to 
said  motion  for  change  of  venue,  we  will  summarize  from  the 
record  enough  to  show  the  questions  raised,  and  to  bring  in  re- 
view the  action  of  the  court. 

Motion  was  made  by  appellant  to  change  the  venue  of  said 
cause  on  the  ground  **that  there  exists  in  Galveston  county  so 
great  a  prejudice  against  him  that  he  cannot  obtain  a  fair  and 
impartial  trial."  This  was  sworn  to  by  appellant,  and  was  sup- 


GALLAHER  r.  STATE 


209 


:^l 


IDorted  by  the  following  compurgators,  to  wit :  "William  Slater, 
J.  E.  Snedeker,  E.  C.  Green,  M.  L.  Eggers,  R.  P.  Sargent,  L.  L. 
Cretin,  John  A.  Harrington,  C.  A.  llorseley,  and  Newton  J. 
Skinner.  This  motion  was  controverted  by  the  State  on  the  affi- 
davits of  J.  K.  P.  Gillaspie,  district  attorney;  Henry  Tliomas, 
sheriff;  and  W.  C.  Jones,  chief  of  police  of  said  Galveston  city. 
Said  affiants  stated  "that  they  were  acquainted,  or  had  been 
made  acquainted,  by  inquiry  from  every  available  source,  with 
said  compurgators,  and  are  cognizant  of  their  means  of  knowl- 
edge, and  all  the  matters  stated  by  them,  and  each  of  them,  in 
their  said  affidavits,  and  that  their  said  means  of  knowledge  is 
not  sufficient  to  support  and  justify  the  statements  contained 
in  their  said  affidavits;  that  said  Galveston  county  is  large  in 
area,  a  part  of  which  is  on  the  islan'^  of  Galveston,  and  a  largo 
part  on  the  mainland,  and  containing  a  large  population,  en- 
gaged in  various  numbers  and  kinds  of  occupations  and  business, 
and  affiants  state  that  it  is  impossible  from  the  conditions  exist- 
ing that  said  compurgators  could  have  the  knowledge  stated  in 
tlieir  affidavits;  and  further  state  that,  from  a  long  and  intimate 
acquaintance,  obtained  from  official  and  other  sources,  of  the 
qualified  jurors  in  Galveston  county,  there  is  no  such  prejudice 
against  Virgil  Gallaher  as  that  he  cannot  obtain  a  fair  and  im- 
partial trial  in  said  Galveston  county,  and  that  the  statements  so 
made  by  said  compurgators  were  ignorantly  made,  and  are  in 
fact  untrue." 

On  the  issue  thus  joined  appellant  introduced  nineteen  wit- 
nesses, including,  besides  the  compurgators  named  above,  the 
following  additional  witnesses:  W.  C.  Williams,  Henry  Bee, 
E.  G.  King,  Frank  Corbin,  Lawrence  Bacigaloupi,  H.  Rakol, 
Thomas  P.  Duffy,  F.  G.  Leaverenz,  J.  T.  Morris,  and  F. 
Fround.  Most  of  these  witnesses  had  lived  a  number  of  years  in 
Galveston  county,  some  as  long  as  thirty-two  years,  and  the  most, 
if  not  all,  resided  in  the  city  of  Galveston,  and  were  well  ac- 
quainted in  said  city,  pursuing  various  occupations, — some 
butchers,  some  salesmen,  contractors,  merchants,  saloon  men, 
newspaper  men,  tailors,  etc.  The  examination  of  said  witnesses 
took  a  wide  range,  but  appears  to  have  been  confined  to  three 
salient  points:     (1)   The  publication  of  an  account  of  said 

homicide  in  the  Galveston  Daily  K'ews  and  in  the  Evening 
Vol.  XI— 14 


III 
mi 


i 


•r 


^H 


210 


AMERICAN  CRIMINAL  REPORTS. 


j ,  •  I 


TrilMinc.  Tlic  circulation  of  these  papers  was  sliown  to  be  large 
ill  said  county,  and  to  have  been  greatly  increased  during  the 
three  or  four  days  succeeding  the  homicide.  The  normal  daily 
circulation  of  the  Galveston  Xews  was  from  3,400  to  3,700,  and 
on  the  day  after  the  homicide  was  discovered  1,200  to  1,500  ex- 
tras were  issued.  The  normal  daily  circulation  of  the  Evening 
Tribune  was  about  the  same  as  the  Xews,  and  on  the  IGth  of 
August,  the  day  of  the  discovery  of  the  homicide,  and  for  two 
days  thereafter,  it  was  greatly  increased,  the  extras  amounting 
to  about  2,500  for  the  three  days.  The  confessions  of  appellant 
and  an  account  of  the  homicide  appear  to  have  been  published 
in  said  papers.  (2)  It  was  also  shown  that  there  was  exhibited 
on  the  sidewalk,  in  one  of  the  most  public  streets  of  the  city  of 
Galveston,  in  the  show  case  of  a  loading  photographer,  photo- 
graphs of  the  house  and  various  scenes  connected  with  the  homi- 
cide. Said  pictures  were  designated  by  writing,  showing  what 
they  were,  such  as  "the  room  where  Gallaher  killed  his  mother," 
etc.  These  pictures  were  on  public  exhibition  about  a  week,  and 
it  was  shown  that  a  large  number  of  people  visited  said  place, 
and  viewed  and  discussed  said  pictures.  Said  photographs  were 
finally  removed  from  the  street  at  the  instance  of  the  sheriff. 
(3)  It  was  also  shown  that  other  defamatory  statements  were 
circulated  in  regard  to  appellant,  in  connection  with  said  mur- 
der, to  wit,  that  he  had  outraged  his  mother  before  killing  her ; 
also  other  defamatory  statements  as  to  other  matters  of  a  crim- 
inal character  charged  against  him. 

We  quote  from  the  testimony  of  some  of  said  witnesses,  as 
presenting  a  fair  sample  of  what  appellant's  testimony  was  in 
this  regard,  the  record  being  too  voluminous  to  quote  all : 

William  Slater  testified:  "That  he  was  a  sewing-machine 
agent,  and  had  lived  in  Galveston  about  seventeen  years.  That 
he  made  an  affidavit  in  this  case.  That  he  had  formed  the 
opinion  from  the  animus  expressed  by  the  people  at  large.  Dur- 
ing the  last  four  days  since  this  case  has  been  court-room  talk, 
I  have  heard  remarks  every  day  in  the  court  room  and  out  of 
the  court  room ;  have  heard  remarks  here  in  the  lobby.  One  of 
the  remarks  was  that,  'If  I  was  on  the  jury,  I  would  hang  v'k* 
defendant.'    Another  remark  struck  me  very  forcibly :  '1  would 


li 
11 

pi 


-1 


GALLAHER  v.  STATE. 


211 


i 


like  to  sec  that  bastard  hanged.'  These  remarks  were  made  by 
men.  I  have  heard  other  remarks  made,  the  substance  of  which  is 
something  like  this:  'Jf  I  had  my  way  with  him,  I  woukl  lynch 
him ;'  or,  'If  I  had  my  way  with  him,  he  ought  to  be  burned ;' 
or,  'Jf  he  was  only  up  in  my  county  where  1  used  to  live,  he 
would  never  have  a  trial  at  all.'  They  were  not  made  upon  my 
solicitation.  They  have  been  made  on  many  occasions.  .  .  . 
I  have  not  heard  any  opinion  concerning  his  innocence  or  con- 
corning  his  ability  to  get  a  fair  trial.  On  cross-examination  ho 
stated  that  he  was  a  white  man,  and  boarded  at  Annie  Wost- 
liall's,  a  colored  woman ;  that  he  was  a  sewing-machine  agent ; 
that  his  business  brought  him  in  contact  with  both  men  and 
women ;  that  he  did  not  know  the  nund^er  of  jurors  he  had  talked 
with;  that  he  had  talked  with  as  many  as  ten  qualified  jurors, 
but  could  not  name  any  of  them." 

John  A.  Harrington  testified:  "That  he  was  a  lawyer,  and 
had  formerly  been  attorney  for  appeHant.  That  he  knew  a 
great  many  people  in  Galveston.  That  he  had  made  it  his  busi- 
ness, while  acting  as  attorney  for  defendant,  to  find  out  the 
feeling  towards  defendant.  He  stated  that  he  had  heard  ex- 
pressions from  various  ])ersons  highly  disparaging  towards  ap- 
pellant, not  only  about  the  case  itself  but  as  to  other  matters. 
Among  others,  that  it  was  reported  that  one  of  the  reasons  that 
defendant  committed  the  deed  was  that  he  had  gone  to  the 
house  after  having  left  the  dive  where  he  had  been  carousing, 
and,  under  the  influence  of  excitement  and  evil  passions  en- 
gendered at  that  place,  he  made  a  criminal  assault  upon  his 
mother.  There  were  other  remarks,  but  they  were  much  less 
heinous  than  that.  Witness  stated  that  he  had  talked  to  as 
many  as  100,  and  perhaps  as  many  as  500,  qualified  jurors. 
That  he  only  knew,  in  a  general  way,  about  the  mainland  and 
the  qualified  jurors  there.  That  it  was  possible  to  get  twelve 
qualified  juroi-s  in  the  county,  if  all  the  time  was  devoted  to  that 
object.  That  it  would  be  easier  to  obtain  a  fair  trial  anywhere 
else.  That  details  and  statements,  made  through  the  press  and 
otherwise,  would  prejudice  the  case,  as  also  the  photographer's 
pictures  which  were  exhibited  on  the  street.  That  he  finally  got 
the  sheriff  to  go  there,  and  direct  those  pictures  to  be  taken 


i 


^i 


212 


AMERICAN  CRIMINAL  REPORTa 


IV 

•'i 


11 
it  1 


down.  That  these  things  were  calculated  to  create  a  feeling  and 
excitpmcnt  in  the  conununity  that  was  to  the  disadvantage  of 
defendant." 

F.  G.  King  testified:  "That  he  had  resided  in  Galveston 
about  six  years,  and  was  a  tailor  by  trade.  Had  hoard  a  great 
many  people  express  their  opinion  with  regard  to  tlic!  prisoner's 
guilt  or  innocence.  The  majority  of  them  was  that  he  ought  to 
be  executed.  That  he  had  probably  heard  in  the  neighborh(jod 
of  fifty  express  that  opinion.  The  universal  opinion  of  the  ma- 
jority was  that  he  ought  to  be  executed." 

C.  A.  llorseley  testified:  That  he  was  in  the  hardware  busi- 
ness, and  had  resided  in  Galveston  twenty-seven  years.  That 
he  had  read  the  Tribune  and  Xews  ab<mt  this  case  when  it  hap- 
pened. That  he  had  heard  other  remarks  in  connection  Avifh  the 
case,  but,  as  he  was  on  the  grand  jury  that  found  the  indictment, 
it  might  not  be  right  f»jr  him  to  tell  them.  That  at  the  time 
tlie  crime  was  committed  he  did  not  hear  the  same  class  of  stories 
that  he  heard  afterwards.  The  substance  was  that  he  had  com- 
mitted an  outrage  on  his  mother.  ''It  was  my  impression  that 
I  have  heard  it  from  a  considerable  number  of  people.  I  have 
heard  other  stories.  The  circumstances  in  which  the  body  was 
found  was  not  at  all  in  compliance  with  the  statements  in  the 
paper  and  making  corrol)orative  evidence  as  to  the  truth  of  the 
stories  flying  around."  That  he  saw  the  photographs  on  exhi- 
bition in  front  of  ^[orris'.  That  he  heard  expressions  at  that 
time  prejudicial  to  defendant.  That,  while  he  was  looking  fit 
them,  Mr.  ^Morris  said  he  must  take  that  down,  and  he  asked 
him,  "AVhy  ?"  lie  said  the  sheriff,  Mr.  Thomas,  had  asked  him 
to  take  them  down,  because  it  was  about  to  cause  a  prejudice 
against  the  prisoner,  but  that  the  chief  of  police  did  not  care 
whether  he  took  them  down  or  not.  That  he  never  heard  any 
one  express  an  opinion  about  appellant  being  innocent.  That  he 
made  the  affidavit  simply  to  see  fair  play.  That  he  had  said 
several  times,  in  spite  of  the  evidence  published  in  the  news- 
papers and  in  spite  of  the  evidence  heard  before  the  grand 
jury,  that  it  would  be  very  hard  to  get  a  jury.  That  it  was 
impossible  to  get  a  man  upon  the  jury  but  what  would  be  in- 
fluenced by  information  heard  on  the  outside.  That  *'it  was  im- 
possible but  that  some  of  the  jury  would  say  that  they  knew  so 


OALLAHER  r.  STATE. 


213 


'i 


nnd  so,  nnd  stories  will  infliienco  juries.  I  think  tlio  minors  T 
liiivo  lionrd  will  cnuse  prejudice  fully  as  mueh  as  the  newspaper 
reports." 

'I'luttnas  P.  Duifv  stated:  That  ho  had  lived  in  Galveston 
twenty-seven  or  twenty-eight  years.  That  ho  had  been  quaran- 
tine inspector  nnd  hailifT  for  the  last  five  months.  That  the  ex- 
])ressions  ho  heard  were  as  to  defendant's  guilt.  That  he  had 
heard  rumors  which,  if  true,  would  be  greatly  against  appellant, 
other  than  that  ho  was  chargetl  with  murder.  They  were  that 
he  had  committed  an  outrage  upon  the  deceased,  his  mother. 
That  he  had  hoard  a  number  of  expressions, — did  not  know  how 
many.  People  would  engage  in  conversation  about  defendant, 
as  to  what  the  papers  had  to  say.  Saw  the  pictures  exhibited  on 
the  sidewalk.  lie  said  that,  notwithstanding  the  rumors  and 
talk,  ho  thought  appellant  could  get  a  fair  and  impartial  trial 
hero.  That  he  thought  they  could  got  twelve  men  out  of  9,000 
who  could  fairly  try  the  case. 

A  number  of  other  witnesses  stated  that  they  had  heard  it  re- 
])ortcd  that  appellant  had  outraged  his  mother,  and  stated  that 
the  expressions  they  had  heard  were  prejudicial  towards  defend- 
ant; but  a  number  of  them  stated  that  they  thought  appellant 
niight  got  a  fair  trial  in  Galveston  county. 

E.  C.  Green  testified:  That  he  Avas  a  resident  of  Galveston 
county,  and  a  contractor  and  builder.  That  ho  had  talked  with 
a  nuni])er  of  persons  on  the  subject  of  defendant  and  his  crime. 
That  every  one  he  had  talked  to  api)oared  to  think  he  was  guilty, 
and  referred  to  his  confession.  That  ho  had  hoard  several  pun- 
ishments suggested.  That  he  hardly  knew  the  worst.  That  de- 
fendant had  heard  some  persons  say  that  he  ought  to  be  burned 
at  the  stake,  possibly  on  one  or  two  occasions.  That  he  had  heard 
the  other  rumor,  that  he  had  ravished  his  mother.  From  what 
ho  had  heard,  in  his  opinion  it  would  hardly  be  possible  to  get 
twelve  fair  and  impartial  men  to  try  the  case. 

On  the  other  hand,  W.  C.  Jones,  for  the  State,  testified :  That 
he  was  chief  of  police  of  the  city  of  Galveston.  Had  lived  in 
that  commimity  since  1852,  and  knew  a  great  many  people  in 
the  county.  That  he  did  not  think  the  gentlemen  who  made  the 
affidavits  had  the  means  of  knowledge  as  to  the  statements  they 
had  sworn  to.   That,  from  personal  knowledge  of  the  community 


au 


AMERICAN  CRIMINAL  REPORTS. 


mid  tlic  pc»ii)l(',  the  iniitters  statctl  in  tho  affidavits  wcvo  not  true. 
That,  from  \m  knowlcdj^o  of  tho  community,  tho  defendant 
coidd  get  a  fair  and  impartial  trial.  That  ho  thonght  most  of 
tlie  persons  who  had  appeared  upon  the  stand  and  made  affi<la- 
vits  were  credihic  persons,  and  that  thoy  testitied  as  to  wlint 
they  honestly  believed  to  be  trno,  but  they  did  not  have  tho 
.neans  of  knowledge  necessary  to  state  the  faets.  That  he  did 
not  swear  that  the  defendant  could  get  a  fair  and  impartial  trial 
hen.'.  That  he  was  a  witness  in  the  case,  and  was  before  tho 
grand  jury.  That  ho  could  not  tell  how  many  of  the  venire  lived 
outside  of  the  cit^'  of  Galveston.  That  at  one  time  he  was  very 
well  aecpiainted  with  the  people  in  the  county  outside  of  tho 
city,  but  not  now.  This  witness  stated  that  ho  had  hoard  tho 
rumor  that  appellant  had  outraged  his  mother.  That  he  at- 
tached no  importance  to  it.  That  he  knew  defendant  committed 
a  burglary  on  one  occasion.  That  he  saw  the  articles,  and  re- 
turned them  to  the  owner  on  the  order  of  Gallahor.  That  ho 
had  not  heard  the  talk  that  be  had  outraged  other  women  in  the 
town.  That  he  had  heard  the  expression  that  there  was  no  ]>un- 
ishment  too  great  for  appellant.  That  he  had  made  that  state- 
ment himself.  That  he  had  made  it  upon  appellant's  own  state- 
ment to  him.  That  he  may  have  repeated  that  to  other  peojile 
in  his  office ;  in  fact,  there  was  another  person  there  at  the  same 
time  and  heard  it.  lie  stated  that  he  firmly  believed  that  ap- 
pellant coxild  have  a  fair  and  impartial  trial,  and  that  was  his 
opinion.  Witness  stated  that  'Mr,  ^NEorris  came  to  him  in  regard 
to  taking  the  pictures  down,  and  wanted  to  know  whether  he 
would  force  him  to  take  the  pictures  down.  That  he  told  him 
he  did  not  think  it  was  Avithin  his  authority. 

Sheriff  Thomas  testified,  j.ibstantially,  that  the  men  wlio 
made  the  affidavits  and  testified  were  credible  persons;  but  ho 
did  not  think  they  were  sufficiently  posted  about  the  sentiment 
in  the  community  to  make  the  affidavits.  He  could  not  say 
whether  their  opportunities  had  been  better  to  know  what  tho 
people  thought  about  it  than  his.  Tho  special  venire  list  was 
read  over  to  this  witness,  which  was  composed  of  150  names.  lie 
stated  that  all  of  said  venire  lived  in  the  city  of  Galveston,  ex- 
cept the  following:  McLean  lived  down  the  island  some  six  or 
seven  miles.    W.  H.  Aldredge  lives  about  a  mile  outside  of  the 


OALLAUER  v.  STATE. 


215 


city  limits,  down  tho  islnml.  Joe  Aikens  lived  at  Ilitrlicock,  on 
tlic  ninitilniid.  C.  A.  Kntissoaii  lives  down  the  island.  Tluit 
wlicn  tlicy  Huninionc'd  tnloHinen  tlioy  uHually  suninionod  thciii 
from  the  city;  m^vor  had  occasion  to  summon  thorn  from  any- 
where else.  Witness  stated  that  he  only  expressed  his  opinion 
founded  upon  information  when  he  said  a  fair  and  impartial 
trial  could  he  ohtained  in  Galveston  county.  There  are  1,500 
to  2,000  voters  outside  of  the  city,  on  the  mainland. 

(lilliispie,  the  district  attorney,  stated  that  he  thou{;ht  the  de- 
fcndiint  could  get  a  fair  and  impartial  trial  in  Galvi  ston  county, 
hikI  that  there  was  no  such  prejudice  against  him  as  would  pre- 
clude that.  That  he  hclieved  the  compiirgators  who  made  tho 
affidavits  did  not  possess  the  means  of  knowledge  of  the  facts 
stated.  That  he  hclieved  persons  had  expressed  themselves  more 
freely  to  him  on  the  suhject,  on  account  of  his  official  ])osition 
than  otherwise.  That  since  the  commission  of  said  oifcnse  he 
had  spent  a  whole  term  of  the  court  in  the  county,  and  a  portion 
of  the  present  term,  some  five  or  six  weeks  in  all  out  of  six 
months.  That  he  had  formed  his  opinion  during  the  six  weeks 
he  had  spent  in  Galveston  out  of  the  five  months  since  the  com- 
mission of  the  offense.  That  he  had  not  heard  a  great  many 
jteojde  express  their  o])inion  as  to  appellant's  guilt  or  innocence. 
Some  expressed  themselves  adversely,  and  a  niunber  luid  ex- 
pressed themselves  uniformly  that  he  could  get  a  fair  and  ini- 
])artial  trial  in  the  county.  He  stated  that  the  only  rumor  he 
liad  heard  circulated  against  appellant  was  that  he  had  filched 
money  from  his  mother. 

The  court,  after  hearing  the  testimony  pro  and  con  on  the  mo- 
tion for  change  of  venue,  overruled  the  same,  and  appellant  re- 
served his  hill  of  exceptions. 

In  Handle  v.  Slate,  34  Tex.  Cr.  R.  43,  28  S.  W.  R-p.  0.53, 
this  court  laid  down  the  doctrine  that  prejudice  and  prejudg- 
ment mean  one  and  the  same  thing,  and  that,  if  it  was  shown 
in  the  county  that  there  was  such  prejudgment  of  the  case  as 
that  appellant  could  not  obtain  a  fair  and  impartial  trial,  the 
venue  should  be  changed.  And  this  opinion  was  adhered  to  and 
f(»llowed  by  a  majority  of  the  court  in  Meyers  r.  State,  39  Tex. 
Cr.  R.  .500,  10  S.  W.  Rep.  S17.  The  Avriter  of  this  opinion  dis- 
sented from  the  views  entertained  on  this  subject  by  a  majority 


m 


■i:   \l 


i:m 


216 


AMERICAN  CRIMINAL  REPORTS. 


of  the  court,  but  in  that  connection  stated  ''that  a  case  may 
occur  of  such  startling  atrocity  as  not  only  to  create  the  forma- 
tion of  an  opinion  in  regard  to  the  guilt  or  innocence  of  the 
party  accused  of  crime,  but  also  to  engender  a  personal  preju- 
dice or  animosity  against  such  person;  that  is,  the  case  itself 
may  be  so  horrible  as  to  engender  a  personal  prejudice  against 
the  person  accused  of  perpetrating  it."  It  occurs  to  us  that  this 
case  certainly  comes  within  the  mollified  view  of  the  principle 
laid  down  in  the  Handle  Case,  as  above  indicated.  The  crime 
here  alleged  against  appellant  was  of  a  most  atrocious  character; 
that  is,  that  he  not  only  murdered  a  loving  mother,  who  was 
kind  and  indulgent  to  him,  by  cutting  her  throat  with  a  razor, 
while  she  was  asleep,  for  the  purpose  of  robbery,  but  that  he 
afterwards  undertook  to  destroy  all  vestige  of  his  crime  by  cre- 
mating her  body.  This  occurred  in  the  city  of  Galveston,  where 
a  great  majority  of  the  people  who  live  in  the  county  of  Galves- 
ton reside.  Xot  only  so,  but  it  was  shown  that  the  Galv(^ston 
!Ncws,  one  of  the  great  daily  journals  of  the  State,  is  published 
in  that  city;  that  it  contained  an  account  of  the  circumstances 
connected  with  the  homicide,  including  the  confession  of  ap- 
pellant; and  that  this  account  was  also  contained  in  another 
daily  paper  of  large  circulation  published  in  said  city,  to  wit, 
the  Tribune;  that  the  circulation  of  these  papers  during  the 
three  days  following  the  homicide  was  greatly  increased  on  ac- 
count of  this  very  homicide,  and  the  startling  circumstances  con- 
nected therewith.  In  addition  to  this,  pl.otographs  of  the  ap- 
pellant and  his  mother,  with  dill'erent  views  of  the  scene  of  the 
homicide,  were  put  on  exhibition  in  one  of  the  principal  streets 
of  the  city  of  Galveston,  and  remained  there  for  several  days, 
being  viewed  by  crowds  of  people.  The  homicide,  and  the  cir- 
cumstances connected  therewith,  were  matters  of  conversation 
among  all  classes  of  society  for  a  considerable  length  of  time. 
Expressions  were  shown  as  coming  from  a  number  of  pei'sons 
that  appellant  should  be  hanged ;  that  he  should  be  executed, 
either  by  hangi  to'  or  burning;  that  no  fate  w^as  too  bad  for  him. 
In  connection  with  this,  it  was  also  made  manifest  that  other 
reports  of  an  exceedingly  prejudicial  character  were  circulated 
in  regard  to  appellant,  and  that  such  reports  gained  credonoo 
and  were  widespread  throughout  the  city  of  Galveston.     Wit- 


GALLAHER  v.  STATE. 


217 


I 


nesscs  from  nil  classes  of  society  testified  in  regard  thereto. 
Some  nineteen  witnesses  were  produced  on  tlie  part  of  appel- 
lant, none  of  whom  were  shown  to  have  any  particular  interest 
in  him,  but  who  testified  to  the  sentiment  of  the  people  regard- 
ing the  guilt  of  appellant.  All  seemed  to  believe  him  to  bo 
guilty,  and  all  seemed  to  believe  that  there  was  a  great  preju- 
dice against  him,  both  on  account  of  the  murder  and  its  publicity 
and  other  reports  concerning  appellant.  Against  this  array 
of  testimony  the  State  marshaled  but  three  witnesses,  each  of 
whom,  it  seems,  was  interested  in  the  prosecution;  one  being 
the  sheriif,  another  the  district  attorney,  and  the  other  the  chief 
of  iK)lice  of  the  city  of  Galveston.  It  is  true  they  did  not  im- 
])Ugn  the  integrity  of  the  compurgators  testifying  on  the  part 
of  appellant.  They  only  testified  as  to  their  credibility  in  coiv- 
nection  with  their  means  of  information.  But  we  submit  that 
the  voliune  of  testimony  here  offered  on  the  part  of  appellant — 
coming,  as  it  does,  from  a  number  of  disinterested  witnesses, 
men  long  residents  of  the  city  of  Galveston,  and  pursuing  vari- 
ous vocations — is  entitled  to  more  weight  than  that  of  only  three 
witnesses  who  testified  for  the  State.  We  would  not  be  under- 
stood as  disparaging  the  integrity  of  the  State's  witnesses.  We 
only  mean  to  say  that  the  mass  of  testimony  offered  by  appellant, 
coming  as  it  does,  outweighs,  in  our  opinion,  the  testimony  of- 
fered on  this  subject  by  the  State.  And  we  believe  if  there  can 
be  a  ca>=e  where  prejudice  can  be  cngxmdered  on  account  of  the 
crime  itself,  and  the  reports  circulated  in  connection  therewith, 
tliat  this  is  such  case.  We  believe  that  the  court  erred  in  not 
changing  the  venue  on  the  showing  made. 

It  has  been  the  uniform  holding  of  this  court  that  the  question 
of  a  change  of  venue  is  a  matter  resting  within  the  sound  discre- 
tion of  the  court,  and,-  unless  there  is  abuse  of  su?h  discretion, 
the  action  of  the  lower  court  will  not  be  revised.  Judged  by 
the  matters  contained  in  the  bill  of  exceptions  on  this  subject, 
we  are  constrained  to  the  opinion  that  the  proper  discretion  of 
the  court  required  a  change  of  venue  in  this  case.  If  we  look 
beyond  the  testimony  itself  and  what  occurred  during  the  trial, 
we  are  strengthened  in  this  view.  The  venire  of  150  men,  taken 
almost  entirely  from  the  body  of  the  city  of  Galveston,  was  soon 
exhausted,  resulting  in  the  selection  of  but  two  jurors.    A  special 


rr 


215 


AMERICAN  CRIMINAL  REPORTS. 


■i  ^ 


m    m 


list  of  talesmen  containing  200  jurors  was  then  summoned. 
Of  these,  it  appears  that  1G5  of  the  200  taletmen  were  sum- 
moned from  the  mainland,  the  balance  being  summoned  from 
the  city  of  Galveston.  Nearly  400  men  were  examined  alto- 
gether before  the  jury  was  obtained.  A  number  of  the  jurors 
who  were  summoned  had  formed  opinions  in  the  case,  and  ap- 
pellant was  compelled  to  take  some  who  had  formed  opinions. 
All  this  shows  that  appellant  was  very  much  hampered  in  the 
selection  of  the  jury  by  the  fact  that  the  crime  and  its  notoriety 
had  been  spread  through  the  county,  and  that  on  this  question  a 
gi'eat  many  persons  had  formed  opinions ;  not  only  so,  but  were 
prejudiced  against  appellant  on  account  of  the  atrocity  of  the 
offense  and  other  circumstances  nimored  against  appellant. 
While  it  is  a  circumstance  in  favor  of  tlie  action  of  the  court 
in  any  case  that  a  just  result  has  been  reached,  yet  this,  of  it- 
self, is  not  a  complete  answer  to  the  proposition.  Our  law  ap- 
prehends that  a  defendant  shall  have  a  fair  and  impartial  trial, 
and  to  this  end  it  is  provided  that  he  shall  not  be  tried  in  the 
county  where  the  prejudice  is  so  great  against  him  as  that  he 
cannot  expect  such  trial.  Taking  it  for  granted  that  prejudice 
is  not  simply  prejudgment,  but  is  prejudgment  coupled  with 
some  degree  of  ill  will,  it  will  be  seen  from  this  record,  not  only 
that  a  great  number  of  the  citizens  of  Galveston  had  formed 
an  opinion  adverse  to  appellant,  but  that  it  went  to  the  extent, 
on  account  of  the  atrocity  of  the  crime  charged  against  him  and 
other  circumstances  of  a  do+'amatory  character  in  circulation  in 
the  community  in  connection  Avith  the  offense,  such  as  to  preju- 
dice them  against  him  and  his  cause.  Under  the  circumstances, 
he  did  not  have  as  fair  and  untrammeled  an  opportunity  to  se- 
lect a  jury  as  if  no  such  prejudice  existed  against  him;  but 
throughout,  in  the  selection  of  the  jury,  he  encountered  this 
prejudice,  which  was  calculated  to  seriousily  impair  his  rights  in 
the  selection  of  the  jury;  and  as  prejudice  is  often  of  n  sinister 
character,  and  remains  under  cover,  it  is  difficidt  to  guard 
against,  and  it  may  be  in  this  case  that  such  prejudice  f(tund 
its  way  into  the  jury  box.  This  is  made  manifest,  as  stated  bo- 
fore,  in  the  selection  of  the  jury.  We  will  discuss  this  qiu'stion, 
however,  more  fully  in  connection  with  appellant's  bills  to  ex- 


GALLAHER  v.  STATE. 


219 


:J 


cc'ption  numbered  from  3  to  9,  inclusive,  all  of  Avliich  "were 
taken  to  the  action  of  the  court  in  impaneling;  the  jury. 

The  jurors  OutersiJe,  McHenry,  Cheek,  Eggert,  Pennock, 
"Wisrodt,  and  Rogers  stated  that  they  had  formed  opinions  in 
the  case.  The  fiifst  five  were  challeng'cd  peremptorily,  and  Wis- 
rodt  and  Rogers  were  taken.  Several  of  them  said  they  shared 
the  i)ublic  opinion  considering  the  defendant  guilty,  but  that, 
if  he  could  prove  himself  innocent,  they  would  let  him  go  free; 
otherwise,  they  would  not  do  so;  that  at  present  they  had  an 
opinion  that  said  defendant  was  guilty.  Each  of  said  jurors, 
after  he  had  been  examined  by  counsel,  was  then  examined  by 
the  court,  to  which  the  general  response  was  that  they  could 
give  the  defendant  a  fair  trial;  that  they  knew  nothing  about 
the  case,  except  what  they  had  read  in  the  newspapers  and  what 
tbcy  had  heard  as  rumors  about  it;  that  they  could  discard  the 
opinions  they  had  on  the  evidence  put  before  the  jury,  and 
would  not  be  influenced  by  the  opinion  formed. 

As  to  the  juror,  Rogers,  who  was  examined  at  length,  the  ap- 
}i('llant's  challenges  being  exhausted,  he  was  compelled  to  take 
said  juror.  The  record  presents  his  evidence  in  fiill,  being  ques- 
tions and  answers.  We  gather  therefrom  that  said  juror  had 
read  what  the  newspapers  said  about  the  homicide  at  the  time 
the  tragedy  occurred,  and  that  he  had  heard  a  great  deal  about 
the  defendant  and  the  case,  and  that,  from  the  newspaper  re- 
jtorts  and  the  expressions  of  opinion  that  he  had  heard,  he 
tliouuht  defendant  guilty  as  a  matter  of  course,  and  that  he  en- 
tertained the  opinion  then  that  he  was  guilty;  that  recently — 
what  he  had  heard  since  the  trial  had  been  up  on  motion  for 
change  of  venue — his  opinion  as  to  the  gniilt  of  defendant  had 
been  strengthened,  and  that  it  would  be  necessary  for  defendant 
to  prove  himself  innocent  before  he  would  acquit  him;  that  it 
Would  ni)t  require  a  great  deal  of  evidence  on  the  part  of  de- 
fendant to  change  his  mind  in  that  particular.  On  cross-ex- 
amination by  the  State,  he  stated  that  the  felt  that  he  was  in 
the  condition  of  mind  to  go  into  the  jury  box  and  try  the  case 
according  to  the  evidence  adduced  on  the  trial;  that  the  opinion 
he  had  was  not  to  such  an  extent  as  not  to  permit  him  being  a 
juror;  that  he  thought  he  could  consider  the  testimony  without 


i? ,  :sg 


h^ 


220 


AMERICAN  CRIMINAL  REPORTS. 


.!  V 


weighing  the  opinion  that  he  then  entertained  at  all;  that  he 
could  go  into  the  jury  box,  and  give  defendant  the  benefit  of 
the  presumption  of  innocence,  until  the  proof  satisfied  him  that 
he  was  guilty.  It  is  further  manifested  by  affidavits  in  this  rec- 
ord that  this  juror,  Kogers,  while  in  the  jury  box,  was  among  the 
first  to  insist  on  capital  punishment  for  appellant,  and  the  affi- 
davit further  suggests  that  he  used  against  appellant  matters 
not  in  testimony.  While  this  is  denied,  yet  it  is  suggestive  that 
this  juror,  Rogers,  was  not  a  fair  and  impartial  juror.  The  rec- 
ord shows  that  he  had  a  fixed  opinion,  and,  while  he  formed  it 
from  newspaper  accounts,  that  these  newspapers  detailed  all  the 
evidence,  including  appellant's  confession.  In  our  opinion,  the 
court  should  have  sustained  the  challenge  to  this  juror  for  cause. 
Suit  V.  State,  30  Tex.  Crim.  App.  310,  17  S.  W.  Rep.  45S ; 
Shannon  v.  State,  34  Tex.  Cr.  R.  5,  28  S.  W.  Rep.  540. 

Appellant,  by  several  bills  of  exception,  objected  to  the  intro- 
duction of  the  confessions  of  appellant, — said  confessions  being 
made  to  Jones,  chief  of  police,  Geehan,  reporter  for  the  Galves- 
ton Xews,  and  Chubb,  reporter  for  the  Galveston  Tribune, — on 
the  ground  that  said  confessions  were  made  while  defendant 
was  in  custody,  and  were  not  freely  and  voluntarily  made,  but 
were  induced  by  coercion;  and,  as  to  the  confessions  made  to 
the  reporters,  that,  in  addition,  the  confession  to  them  was  made 
long  after  the  warning  by  the  sheriff  and  chief  of  police,  and  at 
a  time  when  said  defendant  was  not  mindful  of  the  warning 
previously  given  to  him.  The  first  two  bills  of  exception  relate 
to  confessions  made  to  Jones,  chief  of  police.  The  bills  ^ct  out 
the  confessions  in  full,  and  state  that  said  Jones  was  permitted 
to  testify  to  same,  and  then  proceeds  to  state  that  said  testi- 
mony was  objected  to  at  the  time  it  was  offered  upon  the  follow- 
ing grounds:  "That  said  so-called  'confession'  was  not  freely 
and  voluntarily  made,  but  was  forced  on  defendant,  who  was  at 
the  time  under  arrest,  by  a  course  of  persuasion  and  accusation 
of  more  than  an  hour's  duration,  and  which  was  particii)atcd  in 
by  the  chief  and  deputy  chief  of  police  of  Galveston,  a  reporter, 
and  several  officers  of  the  police  and  detective  force  of  said  city, 
which  said  course  of  treatment  was  calculated  and  intended  to 
so  intimidate  and  overcome  said  defendant  as  to  procure  from 
him  some  statement  directly  implicating  himself  with  the  com- 


GALLAHER  v.  STATE. 


221 


mission  of  said  homicide;  all  of  which  is  more  fully  and  spe- 
cifically set  forth  in  the  statement  of  facts  filed  in  said  cause. 
The  court  overruled  said  objection,  and  admitted  said  testimony, 
to  Avhich  appellant  excepted."  The  court  appends  the  follow- 
ing exphmation:  ''This  approval  is  not  to  be  taken  as  certilying 
the  matters  stated  above  as  ground  of  objection  were  true  in 
fact,  but  only  that  they  were  stated  by  counsel  for  defendant 
as  grounds  upon  which  he  objected  to  the  introduction  of  the 
evidence."  Of  course,  this  qualification  of  the  judge  would 
ordinarily,  under  the  rulings  of  this  court,  eliminate  this  ques- 
tion, as  the  bills  do  not  set  out  the  facts  under  which  the  con- 
fession was  made,  but  merely  uige  agai«nst  the  admission  of  said 
confession  objections  based  on  the  grounds  stated.  These  bills, 
however,  contain  a  reference  to  the  statement  of  facts  filed  in 
the  cause,  constituting  the  predicate  for  the  admission  of  said 
testimony.  The  judge's  qualification  would  not  appear  to  niil- 
lify  this  reference,  but  only  eliminate  the  grounds  of  objection 
stated,  as  not  constituting  a  certificate  of  the  predicate  facts.  If 
we  refer  to  the  statement  of  facts,  we  find  that  much  testimony 
was  elicited  on  the  question  as  to  whether  or  not  the  predicate 
was  sufficiently  laid  for  the  introduction  of  said  testimony. 

On  this  subject  we  summarize  from  the  evidence  of  W.  C. 
Jones  as  follows :  **lt  would  be  hard  to  say  how  long  he  was  in 
my  office  before  he  made  the  confession  to  me.  Don't  know 
whether  it  was  a  half  hour  or  an  hour.  Know  it  was  no  longer 
than  two  hours.  It  was  a  half  hour  to  an  hour.  A  portion  of 
the  time  I  was  writing  at  my  desk.  During  this  time  they  were 
til  Iking.  lie  did  not  remonstrate  aboiit  being  questioned.  He 
made  one  remark  that  I  recollect  very  distinctly  before  they 
went  out,  and  that  was  that  he  would  not  be  bulldozed  into  any- 
thing. He  referred  particularly  to  one  Dave  Jordan.  I  do  not 
think  that  Jordan  brought  the  shirt  into  my  office.  It  was 
either  Amundsen  or  Murphy.  One  brought. in  the  shirt,  but 
Dave  Jordan  took  the  shirt  off  the  desk  in  the  northeast  corner 
of  the  room,  and  came  towards  defendant,  and  remarked,  'Here 
is  the  evidence  of  your  guilt;  you  might  just  as  well  admit  it,' 
or  something  to  that  effect.  I  did  not  see  Jordan  turn  up  one 
of  the  cuffs,  and  point  to  a  stain  on  the  inside  of  the  shirt,  just 
behind  the  cuff,  and  did  not  hear  him  then  say,  'Here  is  tlie 


I 


mtmm 


' 


if 


I   I 


m  ■ 


"i  i 


•If 


222 


AMERICAN  CRIMINAL  REPORm 


blood  of  your  mother  upon  this  shirt.'  They  were  all  question- 
ing him  at  tiie  same  time.  .  .  .  They  kept  on  quest  ion  in/r 
him  further,  and  trying  to  get  a  statement  from  him.  Wo 
wanted  to  find  out  the  truth.  That  is  the  rule  with  every  pris- 
oner, in  regard  to  murder,  that  they  have.  They  question  him 
very  close.  Yoii  may  term  it  a  'sweat-box  system,'  if  you  like ; 
I  don't  so  consider  it.  Xo;  I  do  not  think  my  office  can  be 
called  a  *sweat-box.'  Defendant  made  the  remark  that  ho  did 
not  want  to  be  bulldozed  when  Dave  Jordan  came  at  him  with 
this  shirt.  I  do  not  recollect  the  exact  details.  I  think  it  did 
not  seem  to  intimidate  him.  I  mean,  by  'came  at  him,'  that 
Jordan  picked  up  the  shirt  from  the  table  or  desk  where  it  had 
been  laid,  and  had  the  shirt  in  his  hand,  and  walked  across  the 
room  to  where  defendant  sat.  In  a  way,  I  think  he  charged 
him  with  the  murder  of  his  mother.  Chubb  might  also  have 
taken  the  shirt  in  his  hand  at  that  time,  and  gone  up  to  him, 
and  said,  'You  have  killed  the  best  friend  you  have  ever  had  in 
the  world.'  There  was  a  good  deal  that  went  on  there  that  morn- 
ing. The  officers  each  took  a  turn  at  him.  ...  I  think 
that,  immediately  preceding  the  confession  he  made  to  me  and 
Deputy  Chief  Amundsen,  he  was  carefully  and  closely  ques- 
tioned in  my  office  for  an  hour  or  more.  I  think  these  officers 
questioned  him  very  closely.  I  think  he  was  questioned  with 
all  the  ability  at  the  command  of  those  officers.  I  believe  they 
made  the  best  efforts  they  knew  how,  in  their  questioning  of 
him,  to  make  him  make  a  true  statement  of  the  case.  He  was 
very  free  to  talk,  and  insisted  upon  talking,  biit  at  this  time  he 
did  not  admit  any  connection  with  the  crime  itself,  because  ho 
strenuously  denied  that.  I  do  not  recollect  whether  he  denied 
it  once  or  many  times.  He  strenuously  denied  it  all  this  time 
he  was  questioned  by  two  detectives,  one  or  two  officers,  my- 
self, and  the  deputy  chief.  The  Xevvs  reporter  was  in  there  part 
of  the  time.  .  .  .  After  they  all  went  out  of  my  office,  we 
had  some  few  words.  I  do  not  recollect  exactly  the  tenor  of 
them.  And  defendant  sat  in  the  chair  witl  his  head  thrown 
back,  with  his  eyes  about  half  closed,  I  think  for  about  five  min- 
utes, when  he  remarked  to  me,  'I  want  to  tell  you  this  thing  ex- 
actly as  it  happened.'    I  said,  'Hold  on,  I  want  some  one  else 


'^li 


GALLAHER  v.  STATK 


223 


present  if  you  are  going  to  make  a  confession.'  He  said,  *I 
would  not  do  it  while  they  were  in  here.'  I  thought  he  had  ref- 
erence to  the  manner  of  Jordan.  .  .  .  He  made  his  state- 
ment without  any  questioning  at  all  until  about  through.  Before 
lie  made  it,  I  again  told  him  that  whatever  he  said  would  be 
used  against  him  as  evidence.  He  sat  with  his  eyes  half  closed, 
and  he  then  said  to  me:  '^^^^at  I  said  in  the  statement  that  I 
made  to  the  reporter  Chubb  was  not  correct.  It  was  not  true, 
and  I  now  will  make  a  true  statement  of  what  occurred.'  "  He 
then  made  the  confession  which  was  introduced  in  evidence. 

We  summarize  from  Dave  Jordan's  testimony  for  the  de- 
fense as  follows :  "I  remarked  to  the  chief  that  morning  that  he 
was  not  the  boy  I  had  known  before ;  that  there  was  something 
the  matter  with  him.  I  thought  he  might  be  in  a  hypnotic  state, 
or  he  was  a  spiritualist.  I  thought  at  the  time  his  condition 
was  so  pronounced  that  he  was  under  hypnotic  or  some  other 
influence.  After  I  got  through  talking  to  him  about  the  shirt, 
I  left  the  room.  He  did  not  request  all  to  leave  the  room  ex- 
cept the  chief.  I  left  the  room  because  I  was  through  with  him. 
He  had  not  made  the  confession  to  me,  but  I  knew  he  would. 
That  is  why  I  was  through  with  him.  I  knew  that  he  would 
confess,  because  of  my  knowledg'e  of  men.  The  purpose  of  my 
whole  examination  was  to  get  him  to  tell  the  facts.  I  knew  he 
would  make  a  statement.  I  accused  him  of  killing  his  mother 
on  Sunday  morning.  I  pictured  the  case  to  him.  I  showed  him 
the  garment.  I  told  him  that  was  his  mother's  blood.  I  did  not 
know  whether  it  was  or  not.  The  purpose  of  making  that  state- 
ment to  him  was  I  wanted  to  get  a  statement  from  him.  K^o 
one,  to  my  knowledge,  told  him  if  he  would  make  a  statement 
they  would  protect  him  from  violence.  During  this  whole  hour 
and  a  half  no  remark  was  made  to  him  to  the  effect  that  he  would 
be  protected  if  he  made  a  statement;  nothing  of  the  kind,  in 
substance.  I  asked  him  to  make  a  statement.  I  told  him  it 
would  be  better  for  him  to  relieve  his  conscience.  I  told  him 
he  would  be  relieved  in  conscience  if  he  did.  He  denied  the 
crime.  He  never  connected  himself  with  the  act  of  killing. 
That  is  why  I  kept  at  him.  All  I  wanted  was  to  get  an  account 
of  the  killing  itself.    I  had  to  put  the  questions  in  many  differ- 


m 

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1  *  J 


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a  f 


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r^ 

I ' 

*lj* 

# 

II 

1 

224 


AMERICAN  CRIMINAL  REPORTS. 


ent  ways  to  him.  The  reason,  when  I  considered  liim  in  that 
condition,  that  I  pressed  these  questions  upon  him,  was  I  knew 
he  was  guilty.    I  was  satisfied  that  he  Avas  the  guilty  party." 

There  is  other  testimony  in  the  record  bearing  on  this  predi- 
cate. AH  the  testimony  tends  to  show  that  from  an  hour  to 
an  hour  and  a  half  appellant  was  in  the  office  of  W.  C.  Jones, 
chief  of  police.  The  chief  and  several  deputies  and  detectives 
were  present  and  two  newpaper  men,  and  during  all  that  time 
apj)ollant  was  closely  interrogated  by  the  parties  then  present. 
He  was  beset  by  first  one  and  then  another.  For  a  long  time 
he  persisted  in  his  denial,  but  at  last  yielded,  and  agreed  to 
make  a  true  confession,  and  requested  all  to  go  out  except  the 
chief  of  i^olice.  The  chief  brought  in  Amundsen,  a  deputy,  and 
the  confession  was  then  made.  He  was  very  much  broken  down 
by  the  course  of  his  treatment  by  the  ofHcers  and  detectives. 
They  describe  him  as  exhausted,  with  his  head  thrown  back,  and 
his  eyes  closed,  when  he  made  the  confession ;  and  one  of  them 
states  that  he  was  very  weak,  but  not  quite  collapsed.  We  do 
not  quote  from  the  defendant's  own  testimony,  but  his  evidence 
is  stronger  than  that  of  the  State  on  this  line,  indicating  that 
the  officers  harassed  and  badgered  him,  and  that  he  was  over- 
come by  their  coercion  and  persuasion. 

Our  statute  is  very  guarded  in  its  terms.  It  not  only  requires 
that  a  proper  caution  be  given  the  prisoner,  but,  in  addition 
thereto,  it  must  be  shown  that  the  confession  made  is  a  volun- 
tary statement  of  the  accused.  See  Code  Cr.  Proc,  art.  790. 
And,  where  a  question  is  raised  as  to  the  free  and  voluntary  act 
of  a  defendant  in  making  the  confession,  the  court  will  not  only 
look  to  the  language  used  at  the  time,  but  to  all  the  surrounding 
circumstances,  in  order  to  determine  whether  or  not  the  con- 
fession is  the  voluntary  act  of  the  accused.  In  Thomas  v.  State, 
35  Tex.  Crim.  R.  179,  32  S.  W.  Rep.  772,  the  court  used  this 
language:  *'The  burden  is  on  the  prosecuting  power  to  prove 
that  the  confession  was.  voluntary.  A  confession,  especially  an 
affirmative  one,  appearing  to  have  been  made  with  no  expecta- 
tion of  its  bringing  good  or  averting  evil,  is  termed  'voluntary* 
(1  Bish.  New  Cr.  Law,  §  1223);  the  real  qiiestion  being,  in 
every  case,  whether  or  not  the  confessing  mind  was  influenced 
in  a  way  to  create  doubt  of  the  truth  of  the  confession.     The 


GALLAHER  r.  STATE. 


225 


burden  being  on  the  State,  the  doubt  must  be  excluded.  An  in- 
voluntary confession,  uttered  to  bring  temporal  good  or  avert 
temporal  evil,  even  vhen  the  contemplated  benefit  is  small,  will 
be  rejected.  The  circumstances  under  which  the  confession  Avas 
made  are  of  very  great  importance.  They  must  be  looked  to  in 
all  cases,  and  when  this  is  done,  and  there  is  nothing  pointing  to 
the  motive  prompting  the  confession,  it  will  be  received.  Xoav, 
whether  there  is  an  express  or  implied  promise  to  aid  the  sus- 
]iccted  person,  or  a  threat  of  temporal  injury,  or  whether  the  sus- 
l)ected  person  is  told  that  it  would  be  better  for  him  to  confess, 
etc.,  does  not  always  solve  the  question.  It  is  true  that  the  in- 
ducement under  which  the  confession  was  uttered  is  of  prime 
importance,  but  not  always  decisive.  The  inducement  and  the 
surrounding  circumstances  decide  the  question.  The  induce- 
nu'iit  may  not  be  sufficient  to  show  the  motive  for  the  confes- 
sion, but,  when  read  in  the  light  of  the  surrounding  circum- 
stances attending  it,  may  be  ample  proof  to  create  doubt  of  the 
truth  of  the  confession.  The  judge  should  closely  scrutinize 
these  circumstances  in  connection  with  the  inducement,  and  de- 
cide the  question,  and,  if  nothing  pointing  to  the  motive 
prompting  it  appears,  he  should  receive  it,  and  over  this  sort 
of  question  the  court  has  a  wide  discretion."  And  see  Searcy  v. 
Slate,  28  Tex.  App.  513,  13  S.  W.  Rep.  782. 

It  occurs  to  us  that  the  environment  here  shown,  in  connec- 
tion with  this  confession,  is,  at  least,  suggestive  that  same  was 
not  the  free  and  voluntary  act  of  the  accused,  but  was  superin- 
duced by  the  conduct  of  officers  who,  to  use  their  own  language, 
"knew  he  was  guilty,"  and  determined  to  make  him  confess, 
and  unquestionably  employed  means  which  we  do  not  believe 
Avore  in  keeping  with  the  spirit  of  our  statute  on  the  subject. 
While  it  is  desirable  to  detect  and  punish  crime,  yet  the  safe- 
guards thrown  around  the  citizen  should  always  be  observed,  es- 
pecially by  those  who  are  in  authority.  We  make  these  obser- 
vations in  view  of  another  trial,  and,  inasmuch  as  the  admission 
of  this  character  of  testimony  is  largely  within  the  discretion 
of  the  trial  judge,  we  would  suggest  the  necessity,  if  any  con- 
troversy is  made  in  a  subsequent  trial  as  to  the  admission  of 
said  confession  on  the  ground  that  it  was  not  freely  and  volun- 
tarily made,  that  the  court  give  the  jury  a  charge  on  this  sub- 
Voi*  XI  — 15 


■t  4I 


w= 


220 


AMERICAN  CRIMINAL  REPORTS. 


jcct,  whioli  was  not  done  in  this  case,  though  a  charge  on  thia 
Buhjoct  was  asked,  and  a  hill  of  exceptions  duly  reserved  to  its 
refusal. 

What  we  have  said  heretofore  disposes  of  the  other  hills  of 
exception  relating  to  the  testimony  of  Geehan  and  Chuhh  on 
the  suhject  of  confessions.  As  to  whether  or  not  the  confessions 
to  these  witnesses  were  made  proximate  in  point  of  time  in  con- 
nection with  the  warning  given  hy  the  chief  of  police,  we  think 
this  sufficiently  appears.  See  Barth  v.  State,  39  Tex.  Crim.  K. 
38,  IG  S.  W.  Rep.  228. 

We  do  not  think  the  testimony  of  Xeimeyer  that  Richardson, 
Simonton,  and  Ricker  did  not  work  for  him  in  or  ahout  the 
Mascot  Theater,  in  August,  1897,  was  admissihle.  The  matter 
emhraced  in  this  testimony  might  concern  the  application  ior 
continuance,  hut  was  not  competent  on  the  trial. 

As  to  the  letter  offered  by  appellant  in  evidence  as  presented 
in  bill  of  exceptions,  we  do  not  think  there  was  error  in  the  re- 
fusal of  the  court  to  admit  the  same.  For  the  errors  discussed 
the  judgment  is  reversed,  and  the  cause  remanded. 

Davidson,  P.  J.,  absent. 


LUTTRELL    V.    StATE. 

40  Tex.  Grim.  Rep.  651—51  S.  W.  Rep.  930. 

Decided  June  7,  1899. 

Change  of  Venue:   Res  judicata — Estoppel — Hearsay  evidence — Offer- 
ing to  bribe  witness — Impeachment,  etc. 

1.  Records  for  appellate  review  should  be  condensed;  uncontroverted 

and  conceded  matters  to  be  so  stated;  evidence  as  to  material 
matters  need  not  be  verbatim;  immaterial  matters  may  be 
omitted. 

2.  A  change  of  venue,  because  of  prejudice  of  the  inhabitants,  having 

once  been  granted,  and  the  case  removed  to  another  county  and 
there  dismissed  by  the  State  because  of  inability  to  obtain  evi- 
dence, Is  not  res  judicata,  and  does  not  of  itself  entitle  defendant 
to  a  change  of  venue  on  an  indictment  found  several  years  after 
in  the  original  county.  The  local  prejudice  In  the  meantime  may 
have  subsided. 


LUTTRELL  v.  STATE. 


227 


S.  A  defendant  Is  not  estopped  from  making  an  application  for  a 
cliange  of  venue  because  at  a  prior  term  he  had  agreed  not  to  do 
so  if  granted  a  continuance. 

4.  A  motion  for  continuance  should  show  diligence. 

5.  It  is  error  to  permit  a  witness  to  state  what  he  has  been  told  as 

to  actions  and  inquiries  by  unknown  persons. 
().  It  is  error  to  permit  a  witness  to  state  that  the  defendant's  coun- 
sel had  offered  to  bribe  him  to  leave  the  county,  there  being  no 
proof  that  defendant  authorized  such  conduct. 

7.  Evidence  that  a  witness  has  been  charged  with  and  is  guilty  of 

theft  may  be  rebutted  by  proof  of  general  good  reputation  for 
truth. 

8.  It  was  error  to  allow  the  State  to  prove  that  a  town  marshal  who 

was  friendly  to  the  defendant  arrested  one  of  the  State's  wit- 
nesses the  day  before  he  testified. 

(Several  minor  points,  on  evidence  not  appearing  in  the  opin- 
ion, are  omitted  from  this  syllabus,  but  reviewed  in  the  notes. — 
J.  F.  G.) 


Appeal  from  the  District  Court  of  Hunt  County ;  lion.  How- 
ard Tcinpleton,  Judge. 

Louis  Luttrcll,  being  convicted  of  murder  in  the  first  degree, 
appeals.    Reversed. 

R.  L.  Porter,  S.  D.  Stinson,  W.  C.  Jones,  John  Wynne,  and 
Tom  C.  Thornton,  for  the  appellant. 

W.  W.  Walling  and  Mann  Trice,  Asst.  Atty.  Gen.,  for  the 
State. 

Henderson,  J.  Appellant  was  convicted  of  murder  in  the 
first  degree,  and  his  punishment  assessed  at  confinement  in  the 
penitentiary  for  life,  and  he  appeals. 

The  case  was  filed  at  the  Dallas  branch  of  this  court  on  Oc- 
tober 1,  1897,  and  was  submitted  on  the  20th  of  April,  1898,  at 
the  Austin  term.  The  record  is  written  with  a  pen,  and  contains 
43G  pages;  215  pages  thereof  being  the  statement  of  facts.  This 
record  should  have  been  condensed  into  not  exceeding  200  pages ; 
60  pages  of  which  would  have  been  sufficient  for  the  statement 
of  facts,  showing  every  essential  feature  of  the  case  to  be  passed 
on  by  this  court.  We  consider  it  a  just  subject  of  criticism  that 
this  court  has,  by  this  method  of  practice,  been  compelled  to 
go  through  much  unnecessary  matter,  consuming  time  that 
should  have  been  devoted  to  other  subjects.    It  serves  but  very 


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228 


AMERICAN  CRIMINAL  REPORTS. 


little  purpose  in  mnking  a  statement  of  fncts  to  embody  every 
word  and  sentoiico  each  witness  may  have  nttf-od  on  the  stand. 
All  that  wo  desire  is  a  proper  presentation  in  the  statenu'nt  of 
facts  of  the  salient  features  of  the  ease;  and,  where  witneMse;^ 
agree  on  any  given  point,  it  would  bo  a  very  easy  matter  to  state 
what  one  witness  testified  on  the  question,  and  then  state  that 
others,  naming  them,  agree  with  sueh  witness.  If  a  fact  is  not 
traversed,  or  is  eonccMled,  sueh  should  bo  stated ;  and  where  wit- 
nesses testify  on  innnaterial  points,  not  important  to  be  con- 
sidered in  any  bill  of  exceptions  or  charge  of  the  court,  such 
might  be  well  omitted.  Of  course,  this  does  not  apply  to  eases 
in  which  it  is  insisted  that  the  evidence  does  not  su|)i)Mrt  tho 
verdict.  In  all  such  cases  the  record  should  be  full.  We  make 
these  remark?  because  the  record  is  unnecessarily  large  and  un- 
wieldy. But  these  ol)servations  apply  equally  in  many  eases 
that  come  to  this  court,  and  we  may  be  compelled  in  self-defense, 
when  such  records  come  up,  to  adopt  a  rule  requiring  tho  parties 
to  restate  and  condense  the  record. 

On  a  night  in  September,  1893,  one  Ed  Doggett  (a  young 
blacksmith,  about  twenty  years  of  age),  on  his  way  from  tho 
business  pai't  of  the  city  of  Greenville  to  his  home,  a  short  dis- 
tance from  the  piiblic  square,  was  shot  and  killed  on  one  of  tho 
public  streets  of  said  city,  the  slayers  evidently  being  concealed 
in  a  lumber  yard  fronting  on  Stonewall  street.  At  the  January 
term,  1894,  the  grand  jury  of  Hunt  county  returned  an  indict- 
ment against  defendant  and  one  John  English  for  the  murder. 
The  venue  in  the  case  was  subsequently  changed  to  Collin  county 
on  the  ground  of  the  existence  of  prejudice  against  appellant 
in  Hunt  comity.  The  case  pended  there  for  several  terms  of 
court,  and  was  eventually  dismissed  on  the  part  of  the  State,  be- 
cause of  its  inability  to  procure  testimony  to  secure  the  convic- 
tion of  appellant.  Subsequent  to  this  the  State  discovered  other 
testimony,  and  the  parties  were  again  indicted  in  Hunt  county, 
on  January  30,  1897.  xVt  the  following  July  term  the  case  was 
called  for  trial.  A  trial  was  had,  which  resulted  in  the  convic- 
tion of  appellant.  On  the  trial  the  State  offered  the  positive 
testimony  of  an  eyewitness  to  the  homicide,  and  this  evidence 
was  strongly  re-enforced  by  circumstances  testified  to  by  other 
witnesses.     The  motive  assigned  by  the  State  for  the  homicide 


LUTTRELL  v.  STATE. 


22D 


M'jis  to  tlio  cfTcof  flint  nppolliuit  niul  John  EiigH>^li,  n  short  tiino 
j)rior  to  tho  killiiifj;,  iittriiiptod  to  roh  tho  First  Xationnl  Bank 
of  (ircciivillc,  nnd  that  dcccasod  vas  cither  cognizant  of  same, 
or  had  knowh'dge  of  sonic  fact  in  connection  therewith  that 
-\vonhl  lead  to  tho  identity  of  Lnttrell  and  English  as  tho  guilty 
jiarties;  nnd  that  on  said  account  appellant  nnd  his  co-defend- 
ant conspired  together,  and  in  pursuance  thereof  shot  nnd  killed 
deceased.  Defendant  entered  a  plea  of  not  guilty,  and  relied  on 
the  weakness  of  the  State's  case,  and  also  on  tho  plea  of  allhl. 
On  tho  trial,  appellant  filed  a  motion  to  change  the  venue  of  tho 
case  on  the  ground  of  prejudice  against  him,  nnd  on  the  ground 
that  there  wns  a  secret  forniidahle  cond)ination  against  him;  and 
in  this  connection  ho  also  insisted  that,  tho  court  having  for- 
merly changed  tho  venue  on  a  previous  indictment  to  Collin 
county,  tho  question  of  n  change  of  venue  was  res  adjiidicata, 
and  that  it  was  the  duty  of  the  court  to  recognize  this,  and 
change  the  venue  of  the  case.  With  reference  to  the  latter  propo- 
sition wo  have  this  to  say:  The  former  change  of  venue,  made  in 
1S94,  of  an  indictment  nnd  case  then  pending  against  ai)pel- 
lant  in  Hunt  county,  on  the  ground  of  prejudice  then  existing 
against  him,  c<mld  not  he  an  adjudication  of  the  question  on  tho 
new  indictment  for  the  same  traui^action  (the  old  one  having 
been  dismissed),  and  presented  in  the  district  court  of  Hunt 
county  in  181)7,  three  years  later.  It  was  a  new  indictment, 
presented  long  subsequent  to  the  change  in  the  former  case,  and 
under  new  conditions.  The  court  in  such  case  might  take  cog- 
nizance of  tho  former  change,  and  it  might  afford  some  evi- 
dence if  tho  existence  of  prejudice  formerly;  but  it  could  not 
ho  considered  res  adjudicala  as  to  the  then  existence  of  preju- 
dice in  Hunt  county.  The  court  did  not  err  in  overruling  the 
application  on  this  ground.  The  State  controverted  tho  ajipcl- 
lant'^  motion  for  a  change  of  veniie  on  the  ground  of  prejudice 
and  formidahle  combination,  and  in  connection  therewith  the 
court  exjdained  that  the  parties  at  a  former  terra  of  the  court 
(defendant  being  present)  had  agreed  that  the  court  would  au- 
thorize a  continuance  of  the  cause  at  that  term  if  they  would 
not  make  a  motion  for  a  change  of  venue  at  the  succeetling  term 
of  the  court.  This  was  claimed  to  bo  a-,  estoppel  on  appellant, 
but  we  cannot  so  consider  it.     On  the  motion  the  court  heard 


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230 


AMERICAN  CRIMINAL  REPORTS. 


testimony  pro  and  con,  and  we  are  not  prepared  to  say  that  the 
court  abused  its  discretion  in  refusing  to  change  the  venue. 

Appellant  made  a  motion  for  the  continuance  of  said  cause. 
Clearly,  appellant  was  lacking  in  diligence,  and  on  this  ground 
the  court  was  justified  in  overruling  the  motion. 

Appellant  objected  to  the  testimony  of  the  witness  Jack  Will- 
iams to  the  effect  that  Xeal  Fitts  3ent  for  him  one  night  to  help 
catch  a  horse  out  on  the  prairie,  and  that  Will  Fitts  and  a  negro 
told  him  that  a  couple  of  men  had  ridden  up  to  the  lot,  and  put 
gims  in  their  faces,  and  asked  where  he  (witness)  was.  This 
testimony  was  hearsay,  and  its  relevancy  was  not  shown.  We  do 
not  think  it  was  admissible.  The  State  was  permitted  to  show 
by  Jack  AVilliams  (who  was  an  important  witness  in  matters 
pertinent  to  the  homicide  and  the  connection  of  appellant  there- 
with) that  P.  C.  Arnold,  an  attorney  for  defendant,  attempted 
to  bribe  him  (witness)  to  leave  the  country.  Defendant  objected 
to  this  testimony — First,  because  it  was  hearsay;  and,  second, 
because  it  was  calculated  to  unduly  prejudice  the  action  of  the 
jury  against  defendant.  These  objections  were  overruled,  and 
the  coiirt,  in  approving  the  bill,  states  that  it  was  shown  that 
Arnold  Avas  at  th  '  time  Luttrell's  attorney,  and  was  acting  as 
such  in  the  transaction.  If  appellant  was  shown  to  have  been 
connected  with  or  had  authorized  the  action  of  Arnold,  said 
testimony  would  not  only  have  been  admissible,  but  Avould  have 
been  very  damaging  to  appellant.  But  aside  from  the  fact  that 
he  was  the  attorney  of  appellant,  there  is  absolutely  no  testi- 
mony tending  to  show  that  he  was  authorized  by  appellant  to 
bribe,  or  offer  to  bribe,  said  witness  to  leave;  and  we  apprehend 
that  it  will  not  be  seriously  contended  that  authority  to  bribe 
a  witness  comes  within  the  scope  of  an  attorney's  employment 
to  assist  in  the  defense  of  the  case.  In  the  absence  of  some  testi- 
mony or  statement  in  the  bill  of  exceptions  showing  some  a\t- 
thority  on  the  part  of  defendant's  counsel  to  bribe  a  witness,  it 
cannot  be  pr<  .-amed  that  s\\<A\  authority  was  given.  However 
beneficial  ihe  absence  of  a  witness  may  be  to  a  defendant  in  any 
given  case,  in  the  absence  of  some  proof  of  authority,  any  at- 
tempt on  the  part  of  counsel  to  get  rid  of  a  witness  must  be  at- 
tributed as  of  his  own  motion;  yet  it  cannot  be  gainsaid  that 
such  test  imony  coming  before  a  jury  must  necessarily  be  fraught 


r* 


LUTTRELL  v.  STATE 


231 


Avitli  injury  to  an  appellant  on  trial.  In  the  absence  of  proof 
of  authority,  the  jury  would  nevertheless  be  apt  to  believe  that 
the  lawyer  did  not  act  on  his  own  responsibility,  but  that  there 
must  have  been  some  suggestion  from  the  defendant,  and  so, 
without  proof,  visit  upon  defendant  the  sin  of  his  counsel.  This 
is  not  a  new  question  in  this  court,  but  it  has  always  been  held, 
before  testimony  of  this  character  is  admissible  in  any  case, 
there  must  be  proof  of  some  connection  or  of  some  authority 
conferred  by  defendant ;  otherwise,  the  testimony  as  to  such  de- 
fendant is  purely  hearsay.  Favors  v.  State,  20  Tex.  Crim.  App. 
150;  Barhce  v.  State,  23  Tex.  Crim.  App.  199,  4  S.  W.  Rep. 
584;  Nallcy  v.  State,  28  Tex.  Crim.  App.  387,  13  S.  AV.  Rep. 
G70.  The  State  introduced  evidence  to  show  that  the  State's 
witness  Melton  had  a  good  reputation  for  truth  in  the  com- 
uiunity  in  which  he  lived.  This  was  objected  to  by  defendant 
on  the  gi'ound  that  no  attempt  had  been  made  to  impeach  said 
witness.  The  court,  however,  certities  that  said  testimony  was 
otfored  after  defendant  had  tried  to  impeach  Melton,  not  only 
by  contradicting  his  evidence,  but  by  introducing  in  evidence 
proof  that  he  had  been  charged  to  be,  and  was  in  fact,  guilty  of 
theft,  etc.  It  seems  permissible  to  sustain  a  Avitness  who  has 
been  assaulted  by  proof  showing  that  he  has  been  in  jail,  or 
been  charged  with  other  criminal  offenses  by  evidence  support- 
ing the  general  rei^ntation  for  truth  of  such  witness.  Farmer 
V.  Slate,  35  Tex.  Crim.  R.  270,  33  S.  W.  Rep.  232;  Wharton, 
Ev.  §  491.  There  was  no  error  in  the  action  of  the  court  per- 
mitting the  witness  Barker  to  refresh  his  recollection  by  the 
testimony  taken  down  by  him  in  the  grand-jury  room.  There 
was  no  error  in  the  court  permitting  the  introduction  of  the 
State's  witness  J.  W.  McGinnis  when  admitted,  nor  permitting 
his  testimony  as  to  conversations  with  defendant.  It  was  not 
necessary  to  lay  a  predicate,  as  for  the  impeachment  of  defend- 
ant, as  to  these  matters.  It  was  original  evidence  against  him. 
We  do  not  believe  it  was  permissible  to  allow  the  State  to  prove 
by  the  witness  J.  W.  ^^fcGinnis  that  the  city  marshal  of  Green- 
ville, W.  R.  Volvin,  had  arrested  him  on  the  previous  day.  No 
connection  whatever  is  shown  between  witness'  arrost  and  any 
issue  presented  in  the  case  against  appellant.  But,  inasmuch  as 
there  was  testimony  tending  to  show  that  Volvin  Avas  a  friend 


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232 


AMERICAN  CRIMINAL  REPORTa 


of  defendant,  it  was  calculated  to  suggest  that  the  arrest  of 
McGinnis,  whose  testinicny  was  material,  and  appears  to  have 
been  recently  discovered,  was  instigated  by  some  animus  on  the 
part  of  Velvin  against  bini  because  he  was  a  witness  against  de- 
fendant. 

In  all,  twenty-nine  bills  of  exception  were  reserved,  but  wo 
have  discussed  all  that  we  regard  as  material  as  involving  ques- 
tions likely  to  occur  on  another  trial.  We  would  here,  howovor, 
suggest  that  a  number  of  bills  are  taken  to  the  argument  of  the 
district  attorney.  Some  of  the  language  attributed  to  him  ap- 
pears to  be  outside  of  the  record,  and  of  a  character  calculated 
to  inflame  the  minds  of  the  jury  unduly.  It  is  suggested,  also, 
in  some  of  the  bills,  that  during  the  time  these  remarks  wore 
being  made  the  court  was  off  the  bench  (perhaps  in  an  adjoining 
room),  and  separated  by  the  crowd  from  the  jury  and  counsel. 
The  court,  however,  does  not  appear  to  agree  to  this  latter  sug- 
gestion. Of  course,  we  take  it  that  in  the  proper  administration 
of  law  the  judge  ought  to  be  and  is  present  during  the  entire 
trial.  As  to  the  remarks  of  counsel,  we  are  not  prepared  to  say 
that  we  would  reverse  the  case  on  that  grouiid.  As  stated, 
however,  some  of  the  renuirks  wore  of  an  intemperate  character, 
and  should  have  been  promptly  restrained  by  the  court.  On 
another  trial  we  take  it  that  such  conduct  will  bo  avoided.  On 
account  of  the  admission  by  the  court  of  the  illegal  testimony 
before  discussed,  the  judgiuent  is  reversed  and  the  cause  re- 
manded. 

NoTKS  (by  J.  F.  G.). — That  portion  of  the  opinion  which  says  that 
the  witness  Barlvsr  was  authorized  to  refresh  his  recollection  from  the 
testimony  talien  down  In  the  grand  jury  room,  and  that  there  was  no 
error  in  permitting  the  witness  McGlnnis  to  testify  to  certain  conver- 
sations, should  not  be  accepted  as  authority,  because  it  does  not  appoar 
to  what  extent  the  witness  Barker  refreshed  his  memory,  nor  dooa 
the  opinion  give  the  substance  of  the  conversation  related  by  McGlnnis. 
Matters  of  that  nature  depend  upon  the  particular  circumstances  of 
the  case;  for  example,  the  witness  Barker  might  have  refreshed  his 
recollection  simply  as  to  a  date,  or  as  to  some  immaterial  matter. 

Keic  indictment  after  change  of  venue.— The  first  indictment  being 
dismissed,  no  new  indictment  could  be  had,  except  in  the  county  where 
the  offense  is  alleged  to  have  been  committed;  but  in  Smith  v.  Comm4)n- 
wealth.  95  Ky.  322,  25  S.  W.  Rep.  106,  it  was  held  that,  when  a  change 
of  venue  is  taken  and  the  indictment  is  still  pending,  no  new  indict- 
ment can  be  had.    We  here  give  the  opinion  In  full: 


I? 


LUTTRELL  v,  STATE. 


233 


f 


Hazei.kigo,  J.  On  this  appeal  from  a  Judgment  of  the  Bell  circuit 
court,  consigning  the  appellant  to  the  penitentiary  for  life  for  the  mur- 
der of  John  McKnight,  in  Perry  county,  the  following  facts  appear 
from  the  record,  upon  which  the  jurisdiction  of  Ihe  trial  court  is 
denied:  On  August  25,  1890,  the  appellant,  with  a  number  of  others, 
was  indicted  for  the  murder  of  John  McKnight  in  the  Perry  circuit 
court;  and  thereupon  the  attorney  for  the  Commonwealth,  under  the 
provisions  of  an  act  of  the  general  assem1)ly  approved  May  26,  1890, 
giving  the  Commonwealth  the  right  to  change  the  venue  of  a  case 
when  there  existed  a  state  of  lawlessness  on  the  part  of  the  friends  and 
"vrnpathizers  of  the  accused  preventing  a  fair  trial,  filed  his  written 
statement,  and  the  cause  was  transferred  to  the  Clark  circuit  court. 
Thereafter  the  defendant  in  that  indictment,  the  present  appellant,  ap- 
peared in  the  Clark  court,  and  executed  bond  for  his  appearance  there, 
as  required  by  law.  The  regularity  ot  this  transfer,  and  the  constitu- 
tionality of  the  act  under  which  it  was  made,  were  determined  by  this 
court  in  the  case  of  Com.  v.  Davidson,  91  Ky.  162,  15  S.  W.  Rep.  53;  the 
appellee  in  that  case,  Davidson,  being  one  of  the  defendants  in  the  in- 
dictment with  Smith,  the  present  appellant.  On  March  17,  1893,  and 
while  the  former  indictment  was  still  ponding  and  undetermined  in  the 
Clark  circuit  court,  the  grand  jury  of  Perry  county  again  indicted  the 
appellant,  Smith,  for  the  murder  of  John  McKnight,  and,  notwithstand- 
ing his  protest  against  the  jurisdiction  of  the  court,  made  by  demurrer, 
plea  of  former  jeopardy,  and  his  affidavit,  and  the  record  showing  that 
the  l^erry  circuit  court  had  been  divested  of  its  jurisdiction  over  the 
case  by  the  transfer  mentioned,  the  court  was  about  to  proceed  to  a 
trial  of  the  case,  when  the  appellant  procured,  by  proper  steps  under 
the  statute,  a  change  of  venue  to  the  Bell  circuit  court.  In  the  latter 
court  the  same  questions  were  again  raised  as  to  the  jurisdiction  of  the 
court,  and  the  foregoing  facts  were  shown  by  copies  of  the  records 
from  the  Perry  and  Clark  circuit  courts.  The  court  refused  to  set  aside 
the  Indictment,  overruled  the  demurrers,  general  and  special,  and  the 
objections  of  the  appellant  to  the  jurisdiction,  etc.,  and  the  case  pro- 
ceeded to  trial  under  the  protest  of  the  appellant,  whD  pleaded  former 
jeopardy,  and  set  forth  the  foregoing  facts;  and,  on  the  trial,  the  evi- 
dence of  the  former  Indictment  for  the  same  offense,  and  the  pendency 
of  the  same  case  in  Clark,  etc.,  were  shown,  and  the  court  was  asked 
to  Instruct  the  jury  to  find  the  defendant  not  guilty.  The  court  over- 
ruled his  motions  and  plea,  and  Instructed  the  jury  that  If  they  believed 
from  the  evidence  that  the  defendant  had  theretofore  been  acquitted 
of  the  offense  charged  In  the  Indictment  by  a  judgment  of  the  Clark 
circuit  court,  and  If  they  further  believed  from  the  evidence  that  said 
court  had  jurisdiction  of  his  person  and  of  the  offense  charged  in  the 
indictment,  then  they  should  acquit  the  defendant.  And,  further,  that 
It  was  admitted  by  the  Commonwealth,  and  must  be  taken  as  true,  that 
the  defendant  was  the  same  person  who  was  indicted  In  the  Perry 
circuit  court  at  its  August  term,  1890,  for  the  murder  of  John  Mc- 
Knight and  who  was  then  being  tried  for  the  murder  of  the  same  John 
McKnight,  and  that  both  indictments  charged  the  same  offense,  The 
court  also  gave  the  usual  instructions  as  to  murder,  manslaughter,  etc. 


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234 


AMERICAN  CRIMINAL  REPORTS. 


It  appears  from  (he  copy  of  an  order  of  the  Clark  circuit  court,  filed 
by  the  appellant  on  his  motions  in  this  case,  and  as  evidence  on  the 
trial,  that  the  Commonwealth's  attorney,  in  the  judicial  district  em- 
bracing Clark  county,  had  filed  a  written  statement  on  October  4, 
1893,  upon  which  the  court  ordered  that  the  indictment  against  the  de- 
fendant Smith — the  present  appellant — be  filed  away,  with  leave  to 
redocket  the  same  upon  motion  of  the  Commonwealth's  attorney.  It  is 
apparent  that  the  finding  of  the  second  indictment  while  the  first  one 
remained  undisposed  of,  and  all  the  proceedings  thereafter  had  on  it, 
are  quite  out  of  the  ordinary.  It  is  clear  that,  by  its  transfer  of  the 
case  to  the  Clark  circuit,  the  Perry  circuit  court  lost  all  jurisdiction 
over  the  subject-matter  of  the  indictment.  The  proceedings,  therefore, 
thereafter  had  on  the  second  indictment,  were  void  for  want  of  juris- 
diction in  the  court  in  which  they  were  had,  and  this  is  true  of  the 
attempted  trial  in  the  Bell  circuit  court.  On  motion  of  the  defendant 
In  the  Clark  circuit  court,  the  Commonwealth  not  objecting,  the  venue 
might  have  been  changed  back  to  Perry,  as  decided  in  Hourigan  v. 
Commonwealth,  94  Ky.  520,  23  S.  W.  Rep.  355,  but  not  otherwise.  The 
so-called  trial  in  Bell  was,  in  legal  contemplation,  no  trial  at  all,  and  the 
same  would  have  been  true  of  every  attempted  trial  in  Perry  on  this 
second  indictment.  The  Clark  circuit  had,  at  the  finding  of  this  second 
indictment,  and  at  the  time  of  the  trial  in  Bell,  full  and  complete  juris- 
diction of  the  case,  and,  upon  redocketing  it,  might  yet  proceed  to  try 
the  appellant  for  the  murder  of  John  McKnight. 

These  principles  are  fundamental  and  elementary.  It  is  but  just  to 
say  that  the  learned  attorney-general,  who,  while  quick  enough  always 
zealously  to  prosecute  the  just  pleas  of  the  State,  yet  concedes  this  caso 
to  be  one  "where  it  is  to  the  interest  of  the  Commonwealth  that  the 
law  be  vindicated  by  a  reversal."  The  judgment  is  therefore  reversed, 
with  directions  to  quash  the  indictment,  and  discharge  the  appellant. 


Saffold  v.  State. 

76  Miss.  258—24  So.  Rep.  314. 

Decided  December  26,  1898. 

Change  of   Vexue:  Deadly    iveapoti — Ordinary   pocket-knife — Instruc- 
tions regarding  self-defense. 

1.  Where  the  defendant  is  a  stranger  in  the  county — and  the  relatives 

of  the  deceased  are  numerous,  prominent,  influential  and  scattered 
throughout  the  entire  county, — and  it  appears  that  there  is  a  gen- 
eral bilief  that  defendant  is  guilty,— -with  public  feeling  so  in- 
tense against  the  defendant  that  the  jail  had  been  guarded  to 
prevent  mob  violence,  the  defendant  is  entitled  to  a  change  of 
venue. 

2.  An  instruction  that  the  jury  should  not  give  the  defendant   the 

benefit  of  acting  from  "personal  timidity  or  needless  fear"  should 


SAFFOLD  V.  STATE. 


235 


be  qualified  by  the  statement,  "If  such  personal  timidity  or  nee'.- 
less  fear  are  shown  by  the  evidence  beyond  a  reasonable  doubt." 

3.  It  is  error  for  the  court  to  instruct  the  jury  that  an  ordinary 

pocket-knife  is  not  a  deadly  weapon  per  se. 

4.  Where  there  is  an  entire  failure  to  show  that  the  defendant  began 

the  difficulty,  it  Is  reversible  error  to  instruct  the  jury  that  "the 
right  to  use  a  deadly  weapon  in  self-defense  is  denied  to  an  ac- 
cused person  who  was  the  originator  of  the  difficulty,  entered  it 
armed  and  brought  it  on  intending  to  use  bis  weapon  to  over- 
come his  adversary." 


Appeal  from  the  Circuit  Court  of  Montgomery  County; 
ITon.  "W.  F.  Stevens,  Judge. 

Saflfold,  the  appellant,  who  was  indicted  for  murder,  made  an 
a]ii>lication  for  change  of  veniie,  Avhich  was  denied.  One  of  the 
jurors  on  his  voir  dire  denied  that  he  Avas  related  to  the  de- 
consod,  but  he  was  shown  to  be  related  in  the  fourth  or  fifth 
degree.    The  wife  of  another  juror  was  related  to  the  deceased. 

Snffold,  expecting  a  letter,  called  for  his  mail,  and  was  in- 
fdrnied  by  Ingram,  the  postmaster,  that  there  was  nothing  for 
him;  but  Avhen  he  called  the  next  day  he  was  handed  a  letter 
bv  some  other  person  in  charge  of  the  office.  Saffold  accused 
tlio  postmaster  of  not  properly  stamping  letters  on  their  receipt. 
A  dis])ute  followed,  and  Ingram  approaching  and  striking  at 
Saffold  with  his  pocket-knife,  Saffold  Avas  knocked  down,  and 
during  the  melee  some  one  cried  out,  "Stop,  Ingram,  for  God's 
siikf',  sto]),"  and  Saffold  firing  his  pistol  killed  Ingram. 

The  third  instruction  for  the  State  was  as  follows:  ""While 
the  jury  should  put  thenisolves  in  the  place  of  defendant  and 
judge  of  his  acts  by  the  facts  and  circumstances  by  Avhich  he 
was  surrounded,  they  should  not,  however,  give  him  the  benefit 
of  ])ersonal  timidity  or  needless  fear." 

The  court  instructed  the  jury  on  behalf  of  the  State,  that  "an 
ordinary  pocket-knife  is  not  a  deadh'  weapon  per  se." 

The  fifth  instruction  for  the  State  was  as  follows :  "The  right 
to  use  a  deadly  weapon  in  self-defense  is  denied  to  an  accused 
person  Avho  Avas  the  originator  of  the  difficulty,  entered  it  armed, 
and  brought  it  on  intending  to  use  his  Avcapon  to  overcome  his 
adversary." 

The  defendant,  being  convicted  of  manslaughter,  appeals. 
Ileversed. 


f:   1 


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236 


AMERICAN  CRIMINAL  REPORTS. 


S.  II.  &  IF.  C.  MecJc  and  T.  U.  Slsson,  for  the  appellant. 
Oral  argument  by  T.  U.  Sisson. 

Wiley  N.  Nash,  Atty.  Gen.,  for  the  State. 

Whitfield,  J.,  delivered  the  opinion  of  the  court.  Reluctant 
as  we  always  are  to  interfere  with  the  exercise  of  discretion  by 
the  lower  court,  we  have  been  compelled  in  this  case,  after  the 
most  careful  consideration,  to  hold  that  the  application  for  a 
change  of  venue  should  have  been  granted.  Twenty-five  wit- 
nesses, besides  the  defendant,  testified  positively  that,  by  reason 
of  "prejudgment  of  this  case,  or  grudge  or  ill-will  towards  the 
defendant,"  he  could  not  obtain  a  fair  and  impartial  trial  in  the 
county.  Some  twenty  witnesses  were  examined  by  the  State ;  a 
number  of  them  had  formed  opinions  as  to  the  guilt  of  the  de- 
fendant which  it  would  require  evidence  to  remove.  Most  of 
the  expressions  heard  by  these  witnesses  were  decidedly  adverse 
to  the  defendant.  Defendant  was  a  stranger  in  the  county.  De- 
ceased's family  connections  were  numerous,  prominent  and  in- 
fluential, and  scattered  over  the  county,  especially  the  eastern 
part  of  the  county,  where  was  the  largest  white  element.  One 
of  the  jurors  was,  by  affiulty,  related  to  the  deceased  in  the 
fourth  or  fifth  degree,  and  yet  seems  not  to  have  known  it.  So 
intense  was  the  feeling  roiised  against  the  defendant  that  mob 
violence  threatened  the  jail,  which  had  to  be  guarded.  We  will 
not  enlarge  further.  Lender  this  showing  the  venue  should  have 
been  changed.  Jamison  v.  People,  145  111.  357.  See  cases  cited 
in  notes  to  3  Am.  &  Eng.  Enc.  Law  (1st  ed.),  97;  Johnson  v. 
Com.,  82  Ky.  IIG. 

The  third  instruction  for  the  State  is  correct  enough  as  an 
abstract  proposition  of  law,  but,  as  applied  to  the  concrete  case 
made  by  the  testimony,  should  have  added  at  the  close,  "if  such 
personal  timidity  or  needless  fears  are  shown  by  the  evidence 
beyond  a  reasonable  doubt."  The  instruction  that  an  ordinary 
pocket-knife  is  not  per  se  a  deadly  weapon,  as  a  matter  of  law, 
is  one  we  are  not  prepared  to  approve.  What  is  an  ordinary 
]>o(*kot-knife  ?  The  knife  in  this  case  was  a  four-bladed  knife, 
about  three  inches  long  closed,  with  a  buck-horn  handle.  Dr. 
Ward  testified  there  were  three  parallel  cuts  on  SafTold's  face, 
apparently  made  "with  a  dull  edge."    It  is  proper  to  have  the 


% 


SAFFOLD  V.  STATE. 


237 


jury  to  say,  as  a  matter  of  fact,  whether  a  weapon  is  a  deadly 
wciipon,  and  the  court  properly  charged  the  jury  for  the  defend- 
ant to  this  effect.  Indeed,  the  series  of  charges  given  for  the 
(Icfcmlant  in  this  case  were  ahnndantly  liberal  to  the  defendant, 
and  were  drawn  with  consummate  skill,  and,  whilst  pointing 
out  these  errors  in  the  two  charges  named,  we  would  not  for 
these  errors  reverse  the  judgment.  But  the  fifth  charge  for  the 
Stiite,  whilst  announcing  a  correct  abstract  proposition  of  law, 
is  fatally  erroneous  as  applied  to  the  case  made  by  the  proof. 
There  is  an  entire  failure  to  show,  in  a  proper  sense,  that  Saf- 
fuhl  began  the  difficulty.  AVe  forbear  to  comment  on  the  testi- 
mony, I'xcept  as  necessary  in  passing  upon  these  charges. 

.Judgment  reversed,  verdict  set  aside,  and  cause  remanded 
for  a  new  trial. 


Note  (by  J.  F.  G.).— In  State  v.  Billings,  77  Iowa,  417,  8  Am.  Crlm. 
Rep.  329,  a  conviction  for  murder  in  the  second  degree  was  reversed, 
because  of  error  in  the  court  below  in  overruling  a  motion  for  a  change 
of  venue.  The  defendant  sought  not  only  a  change  of  venue  from  his 
own  county,  but  objected  to  another  adjoining  county.  His  applica- 
tion was  supported  by  the  affidavits  of  forty  or  fifty  persons,  alleging 
that  public  sentiment  was  against  the  defendant,  etc.,  and  that  in 
some  instances  talk  of  lynching  was  indulged  in.  There  was  also  evi- 
.ience  that  various  persons  had  expressed  their  belief  that  there  should 
be  a  change  of  venue;  but  that  they  declined  to  assign  it  for  business 
and  other  reasons  and  also  declined  to  make  affidavits.  About  eight 
hundred  residents  of  three  counties  made  counter  affidavits,  the  af- 
fiants claiming  to  be  acquainted  with  the  feelings  and  sentiments 
e.xisting,  and  that  no  such  prejudice  would  exist  as  would  prevent  a 
fair  and  impartial  trial;  but  did  not  controvert  the  fact  stated  In  the 
affidavits  supporting  the  application  for  change,  and  did  not  deny  any 
of  the  statements  as  to  excitement  and  prejudice.  The  court  held  that 
the  counter  affidavits  were  insufficient.  The  case  was  reversed,  and 
the  venue  changed  to  another  county,  and  again  a  verdict  of  murder 
in  the  second  degree  was  rendered;  but  this  the  Supreme  Court  re- 
versed, and  ordered  that  the  defendant  be  discharged,  because  the  evi- 
dence strongly  indicated  that  the  deceased  had  committed  suicide. 
The  judge  writing  the  opinion  said  that  such  was  the  opinion  of  the 
judges  at  the  previous  hearing,  but  in  that  instance  they  simply 
granted  the  new  trial  that  the  case  might  be  re-submitted  to  a  jury; 
but  as  this  theory  was  more  clearly  demonstrated  at  the  second  trial, 
the  defendant  should  be  discharged. 

The  writer  bears  in  mind  a  burglary  case  tried  at  West  Union,  Iowa, 
about  thirty  years  ago,  in  which  the  defendant  had  often  been  accused 
of  crime,  but  was  generally  very  successful  in  his  defenses;  the. previ- 
ous cases  making  heavy  costs  to  the  county.    The  defendant  made  an 


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■.  • 

■: 

238 


AMERICAN  CRIMINAL  REPORTS. 


application  for  a  change  of  venue,  obtaining  the  signatures  of  a  few 
persona  to  the  affidavit.  The  prosecution  sent  a  notary  public  through 
the  town  with  a  counter  affidavit  for  signatures,  and  obtained  so  many 
that  the  application  was  denied  and  the  defendant  was  convicted.  In 
the  presence  of  the  writer,  one  of  the  well-known  business  men  of  that 
town  when  he  signed  and  swore  to  the  affidavit  stated  that  he  believed 
the  defendant  could  obtain  a  fair  trial;  because  he  believed  that  upon 
a  fair  trial  the  defendant  would  be  convicted.  This  illustration  is 
given  simply  to  show  the  unreliability  of  affidavits  of  this  nature  when 
the  facts  upon  which  the  party  grounds  his  belief  are  not  stated. 


mi 


State  v.  Mylod. 

20  R.  I.  632—40  Atl.  Rep.  753. 

Decided  July  18,  1898. 

Christian  Science:  Constitutional  questions  not  involved — Construc- 
tion of  statute  regulating  the  practice  of  medicine  and  surgery — 
Benefit  of  reasonable  doubt  as  to  matters  of  law. 

1.  The  question  as  to  whether  or  not  an  act  of  the  legislature  is  in 

violation  of  the  constitution  will  not  be  considered  when  the  evi- 
dence does  not  show  a  violation  of  the  provisions  of  the  act. 

2.  While  the  words  of  a  statute  "are  not  to  be  restricted  in  meaning 

within  the  narrowest  limits,  neither  are  they  to  he  extended  be- 
yond their  common  interpretation;  and  if  there  is  a  reasonable 
doubt  as  to  whether  the  acts  done  are  within  the  meaning  of  the 
statute,  the  party  accused  of  ltd  violation  is  entitled  to  the  benefit 
of  that  doubt." 

3.  The  practice  of  Christian  Science  is  not  controlled  by  the  statute 

relating  to  the  practice  of  medicine  and  surgery. 

Walter  E.  Mylod,  being  charged  by  complaint  with  practic- 
ing medicine  and  surgery  for  reward,  without  registration  and 
license,  the  matter  was  certified  to  the  Supreme  Court  by  a  dis- 
trict court,  upon  a  constitutional  question. 

Charles  F.  Stearns,  Asst.  Atty.  Gen.,  for  the  State. 
George  H.  Little  field,  for  the  defendant. 


BoswoRTii,  J.  The  defendant  was  adjudged  probably  guilty 
in  the  district  court  of  the  Sixth  judicial  district  upon  com- 
plaint of  Gardner  T.  Swarts,  secretary  of  the  State  board  of 
health.     Said  complaint,  which  was  made  under  chapter  165, 


?U,i,3ii'? 


STATE  v.  MYLOD. 


239 


Gen.  Laws  R.  I.,  alleges  that  the  defendant,  at  Providence,  on 
tlie  20th  day  of  Xoveinber,  1897,  *Mid  then  and  there  practice 
medicine  and  surgery  for  reward  and  compensation,  without 
lawful  license,  certificate,  and  authority,  and  not  being  then  and 
there  duly  registered  according  to  law." 

The  defendant,  upon  arraignment,  pleaded  not  guilty,  and 
subsequently,  and  before  judgment,  raised  a  question  of  the 
constitutionality  of  said  chapter  1G5,  which  question,  in  accord- 
ance with  the  provisions  of  chapter  250,  Gen.  Laws  R.  L,  was 
certified  and  transmitted  to  the  appellate  division  of  the  Su- 
preme Court  for  decision. 

Gen.  Laws  R.  I.,  eh.  165,  provides  for  the  registration  of 
]ihysicians,  and  its  ol)ject  is  to  regtdate  the  practice  of  medicine 
and  surgery.  Under  this  chapter,  authority  to  practice  medi- 
cine and  surgery  is  through  a  certificate  issued  by  the  State 
board  of  health,  and  said  board,  upon  application,  and  without 
<liscrimination  against  any  particular  school  or  system  of  medi- 
cine, is  required  to  issue  such  certificate  to  any  reputable  physi- 
cian practicing,  or  desiring  to  begin  the  practice  of,  medicine 
or  surgery  in  this  State,  who  possesses  certain  specified  quali- 
fications. 

Section  2  of  said  chapter,  in  part,  is  as  follows : 

''Sec.  2.  It  shall  be  unlawful  for  any  person  to  practice  med- 
icine or  surgery  in  any  of  its  branches,  within  the  limits  of  this 
State,  who  has  not  exhibited  and  registered  in  the  city  or  town 
clerk's  office  of  the  city  or  town  in  which  he  or  she  resides,  his 
or  her  aixthority  for  so  practicing  medicine  as  herein  provided, 
together  with  his  or  her  age,  address,  place  of  birth,  and  the 
school  or  system  to  which  he  or  she  proposes  to  belong." 

Section  8  of  said  chapter  is  as  follows : 

''Sec.  8.  Any  person  living  in  this  State  or  any  person  com- 
ing into  this  State,  who  shall  practice  medicine  or  surgery,  or 
attempt  to  practice  medicine  or  surgery  in  any  of  its  branches, 
or  who  shall  perform  or  attempt  to  perform  any  surgical  opera- 
tion for  or  upon  any  person  within  the  limits  of  this  State  for 
reward  or  compensation,  in  violation  of  the  provisions  of  this 
chapter,  shall  upon  conviction  thereof  be  fined  fifty  dollars,  and 
upon  each  and  every  subsequent  conviction  shall  be  fined  one 
hundred  dollars  and  imprisoned  thirty  days,  or  either  or  both, 


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■  I 

■  If; 


240 


AMERICAN  CRIMINAL  REPORTS. 


in  the  discretion  of  the  court;  niul  in  no  case,  Avlierc  any  pro- 
vision of  tliis  chapter  has  heen  viohited,  shall  the  person  so 
violating  be  entitled  to  receive  compensation  for  services  ren- 
dered. To  open  an  office  for  such  purpose,  or  to  announce  to 
the  public  in  any  other  way  a  readiness  to  practice  medicine  or 
surgery  in  this  State,  shall  be  to  engage  in  the  practice  of  medi- 
cine within  the  meaning  of  this  chapter." 

For  the  State,  Everett  Hall  testitied,  substantially,  that  he 
called  upon  the  defendant  at  his  residence,  and  asked  to  bo 
cured  of  malaria ;  that  the  defendant  said  he  was  Dr.  ^Afykxl ; 
that  the  defendant  sat  looking  at  the  floor,  with  his  eyes  shaded, 
as  if  engaged  in  silent  prayer,  for  about  ten  minutes,  and  then, 
looking  up,  said,  "I  guess  you'll  feel  better;"  that  defendant 
gave  him  a  book  entitled  "A  Defense  of  Christian  Science;" 
that  he  gave  defendant  one  dollar;  that  defendant  did  not  rec- 
ommend nor  administer  any  drug  or  medicine,  nor  take  his 
pulse  or  temperature,  nor  do  any  of  the  things  usually  done  by 
physicians. 

Clarence  Vaughn,  in  behalf  of  the  State,  testified  that  ho 
called  upon  the  defendant  at  his  residence  on  two  occasions,  and 
requested  to  be  cured  of  the  grippe ;  that  he  gave  defendant  one 
dollar  each  visit;  that  defendant  said  he  was  Dr.  Mylod;  that 
defendant  gave  him  a  card,  stating  the  defendant's  office  hours, 
and  describing  defendant  as  a  Christian  Scientist,  but  not  in 
any  way  referring  to  defendant  as  a  physician ;  that  defendant 
did  not  take  his  pulse  or  temperature,  nor  do  any  of  the  other 
things  that  physicians  do  in  treating  disease,  but  seemed  to  bo 
sitting  in  silent  prayer;  that  defendant  gave  him  a  book  en- 
titled, "An  Historical  Sketch  of  Metaphysical  Healing ;"  that 
defendant  told  him  to  look,  not  on  the  dark  side  of  things,  but 
on  the  bright  side,  and  to  think  of  God,  and  it  would  do  him 
good,  since  thought  governs  all  things. 

Dr.  Gardner  T.  Swarts,  secretary  of  the  State  board  of 
health,  testified  that  the  defendant  is  not  a  registered  physician, 
that  said  defendant  does  not  have  authority  to  practice  medi- 
cine in  Khode  Island,  and  that  physicians  often  cure  disease 
without  the  use  of  drugs  or  medicine. 

For  the  defense,  the  charter  of  the  Providence  Church  of 
Christ,  Scientist,  was  introduced  in  evidence,  and  the  defend- 


I 

,1 


STATE  V.  3IYL0D. 


241 


nnt  testified,  substantially,  that  lie  is  the  pvesitlcnt  and  first 
reader  or  pastor  of  said  church;  that  said  church  has  l)oen  or- 
ganized and  has  held  regular  religious  services  for  seven  years; 
that  said  church  belongs  to  the  sect  known  as  Christian  Scien- 
tists, in  whoso  belief  God  and  Josus  Christ  and  the  JJiblc  hold  a 
suprome  place;  that  the  principal  distinguishing  difference  be- 
tween Christian  Scientists  and  other  sects  consists  in  the  belief 
of  the  former  regarding  disease,  which  they  believe  can  be  ro- 
dueed  to  a  minimum  thi'ough  the  power  of  prayer;  that  the 
public  religious  services  of  said  church  consist  of  silent  prayer, 
music,  reading  of  the  Scriptures  and  of  extracts  from  "Scienec 
and  Health,"  by  Mary  G.  Baker  Eddy;  that  he,  beyond  a 
greater  realization  of  truth  which  his  longer  study  of  Christian 
Science  may  have  given  him,  professed  to  have  no  greater  power 
(ivor  illness  than  that  possessed  by  any  member  of  his  church; 
that  he  did  not  tell  the  witnesses  Hall  and  Vaughn  that  he  could 
fiire  them,  nor  did  he  call  himself  a  doctor;  that  he  did  not  at- 
tempt to  cure  them  by  means  of  any  power  of  his  own;  that  ho 
iissured  them  that  it  is  God  alone  who  heals,  acting  through  the 
litiinan  mind;  that  all  he  did  was  to  engage  in  silent  prayer  for 
them,  and  to  endeavor  to  turn  their  thoughts  to  God  and  to- 
wards the  attainment  of  physical  perfection;  that  the  efforts 
made  for  them  were  precisely  the  same  in  character  as  those 
which  he  makes  for  his  congregation  at  public  services  of  his 
cliurch;  that  he  does  not  practice  medicine,  nor  attempt  to  cure 
iliscase;  that  he  has  no  knowledge  of  medicine  or  surgery;  that, 
!is  a  Christian  Scientist,  he  never  recommended  to  any  one  a 
course  of  physical  treatment;  that  he  has  only  the  method  of 
prayer  and  effort  to  encourage  hopefulness,  for  all  who  come  to 
him  in  public  or  private,  and  whatever  disease  they  imagine 
tliev  have ;  and  that  his  ministrations  often  can  be  and  are  ren- 
dcrod  as  effectively  in  the  absence  as  in  the  presence  of  the  bene- 
ficiary. 

Other  witnesses  were  called,  but  there  was  no  material  vari- 
ance in  the  testimony  except  that  the  witnesses  Hall  and  Vaughn 
testified  that  the  defendant  said  he  was  Dr.  Mylod,  which  testi- 
mony was  contradicted  by  the  defendant. 

The  constitutional  question  raised  by  the  defendant  is  that 
under  sec.  3,  art.  1,  Const.  R.  I.,  which  secures  to  him  religious 
VouXI-lO 


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242 


AMERICAN  CRIMINAL  REPORTS. 


frt'cdoni,  he  lind  a  right  to  jiorfonn  the  nets  shown  by  the  testi- 
mony to  have  been  performed,  and  that,  tlierofore,  said  eh.  lO't, 
Gen.  Laws  K.  I.,  under  wbleh  snid  eomplaint  was  made,  is  \ni- 
constitntional  if,  and  in  so  far  as,  it  provides  a  penalty  for  the 
performanee  of  said  aets. 

This  question,  properly,  cannot  be  considered  by  the  court 
unless  said  chapter  105  is  sutiieiently  broad  to  include  witliin 
its  prohibitive  provisions  the  acts  of  the  defendant,  for  the  de- 
fendant cannot  queston  the  constitutionality  of  said  chapter 
unless  his  rights  would  be  aifected  by  its  enforcement.  State  v. 
Snow,  3  R.  I.  04. 

There  is  no  testimony  tending  to  show  that  the  defendant 
practiced  or  attempted  to  practice  surgery,  or  that  he  made  any 
diagnosis  or  examination  to  ascertain  whether  the  witnesses 
Hall  and  Vaughn  were  suffering  from  disease,  or  that  he  ad- 
ministered or  prescribed  any  drug,  medicine,  or  remedy,  or  tluit 
he  claimed  any  knowledge  of  disease,  or  the  proper  remedies 
therefor. 

Upon  the  testimony,  the  only  claim  that  can  be  made  by  the 
State  is  that  upon  a  card  handed  to  one  of  the  witnesses  ap- 
])eared  the  name  and  office  hours  of  the  defendant;  that  the  de- 
fendant said  he  was  Dr.  Mylod;  that  he  offered  silent  prayer 
for  the  witnesses  Hall  and  Vaughn,  who  claimed  to  be  suffering 
from  disease ;  that  he  gave  said  witnesses  each  a  book  in  which, 
])re8umably,  the  principles  of  Christian  Science  were  taught, 
explained,  and  defended ;  that  he  told  the  witness  Vaughn,  sub- 
stantially, to  look  on  the  bright  side  of  things,  and  think  of 
God,  and  it  would  do  him  good ;  and  that  he  accepted  compensa- 
tion for  his  services. 

Did  these  acts  of  the  defendant  constitute  the  practice  of 
medicine,  in  violation  of  ch.  105,  Gen.  Laws  R.  L  ? 

It  is  the  duty  of  the  court  to  give  effect  to  the  intention  of  the 
lawmaking  power  as  embodied  in  the  statutes.  The  legislature 
is  presumed  to  mean  what  it  has  plainly  expressed,  and,  when 
it  has  so  expressed  its  meaning,  construction  is  excluded.  It  is 
only  when  the  meaning  of  a  statute  is  obscure,  or  the  words  em- 
ployed are  of  doubtful  meaning,  that,  in  order  to  give  effect  to 
the  legislative  intention,  the  duty  of  constriiction  arises.  In  the 
construction  of  penal  statutes  a  well-established  rule  is  that 


I- 


m 


STATE  r.  MYLOD. 


248 


words  and  phrases  must  be  taken  in  their  ordinnry  ncppptatinn 
iiinl  popular  meaning,  unless  a  contrary  intent  appears.  Wliilo 
the  words  of  such  statutes  are  not  to  bo  restricted  in  moaning 
within  the  narrowest  limits,  neither  are  they  to  be  extended  be- 
yond their  common  interpretation;  and,  if  there  is  a  reason- 
iil)le  doubt  as  to  whether  the  acts  done  are  within  the  meaning 
of  the  statute,  the  party  accused  of  its  violation  is  entitled  to 
the  benefit  of  that  doubt.    Endl.  Interp.  St.,  §§  329,  330. 

Tt  follows,  therefore,  that  the  acts  complained  of  are  ex- 
cluded from  the  operation  of  said  chapter  1G,5  unless  the  words 
"practice  of  medicine,"  taken  in  their  ordinary  or  popular 
meaning,  include  them,  or  unless  it  appears  from  said  chapter 
tliat  the  legislative  intent  was  to  give  to  said  words  a  meaning 
broader  and  more  inclusive  than  the  popular  one, 

^fedicine,  in  the  popular  sense,  is  a  remedial  substance.  The 
practice  of  medicine,  as  ordinarily  or  popularly  understood,  has 
relation  to  the  art  of  preventing,  curing,  or  alleviating  disease 
or  pain.  It  rests  largely  in  the  sciences  of  anatomy,  physiology, 
and  hygiene.  It  requires  a  knowledge  of  disease,  its  origin,  its 
anatomical  and  physiological  features,  and  its  causative  rela- 
tions; and,  further,  it  requires  a  knowledge  of  drugs,  their  prej)- 
aratioii  and  action.  Popularly,  it  consists  in  the  discovery  of 
the  cause  and  nature  of  disease  and  the  administration  of  reme- 
dies or  the  prescribing  of  treatment  therefor. 

Prayer  for  those  suffering  from  disease,  or  words  of  encour- 
agement, or  the  teaching  that  disease  will  disappear  and  phys- 
ical perfection  be  attained  as  a  result  of  prayer,  or  that  human- 
ity will  be  brought  into  harmony  with  God  by  right  thinking 
and  a  fixed  determination  to  look  on  the  bright  side  of  life, 
does  not  constitute  the  practice  of  medicine  in  the  popular  sense. 

The  State,  however,  contends  that  said  chapter  165,  taken  as 
a  whole,  indicates  a  legislative  intention  to  give  to  the  words 
*  practice  of  medicine"  a  meaning  broader  than  the  popular  one. 
In  support  of  this  contention  it  calls  attention  to  the  provision 
contained  in  section  8  of  said  chapter  that  "to  open  an  office  for 
such  purpose  [that  is,  for  the  practice  of  medicine  or  surgery], 
or  to  announce  to  the  public  in  any  other  way  a  readiness  to 
practice  medicine  or  surgery  in  this  State,  shall  be  to  engage  in 
tlK3  practice  of  medicine  within  the  meaning  of  this  chapter.'* 


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AMERICAN  CRIMINAL  REPORTS. 


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In  view  of  this  provision,  the  State  contends  that  to  practice 
medicine  it  is  not  necessary  to  use  internal  or  otJicr  remedies, 
nor  to  make  diagnoses,  nor  to  have  a  patient,  but  that  the  open- 
ing of  an  office  for  the  practice  of  medicine,  or  the  announce- 
ment of  a  readiness  to  engage  in  such  practice,  constitutes  a 
practice  of  medicine;  and  therefore,  as  the  statute  applies  not 
only  to  those  who  actually  practice,  hut  also  to  those  who  an- 
nounce in  any  way  a  readiness  to  practice,  the  State  contends 
that  the  legislature  intended  to  give  a  broader  than  the  gen- 
erally accepted  meaning  to  the  words  "practice  of  medicine." 

We  are  unable  to  agree  with  this  contention.  Without  pass- 
ing upon  the  provision  referred  to,  and  whatever  its  signifi- 
cance, it  certainly  cannot  be  construed  to  brijaden,  in  a  general 
sense,  the  meaning  of  the  Avords  "practice  of  medicine."  The 
most  that  can  be  claimed  for  it  is  that  it  operates  to  broaden 
the  offense  created  by  said  chapter  105,  so  that  the  attempt  or 
the  announcement  of  a  reailiness  to  practice  medicine  beconies 
equivalent  to  the  actual  practice. 

The  State  further  calls  attention,  in  support  of  its  conten- 
tion, to  section  G  of  said  chapter,  which  provides  that  "nothing 
in  this  chapter  shall  be  so  coubtn.ed  as  to  discriminate  against 
any  particular  school  or  system  of  medicine;"  and  it  argues 
that,  as  the  statutory  ])rohii)ition  relates  to  the  practice  of  medi- 
cine "in  any  of  its  branches,"  and  that  as  certain  diseases — • 
such  as  insanity  and  nervous  prostration — are  treated  by  the 
so-called  "regular  schocd"  without  the  use  of  drugs,  and  that  as 
all  schools  recognize  the  study  of  mental  conditions  as  affecting 
bodily  health  as  forming  a  distinct  branch  of  medicine,  the  leg- 
islative intention  to  give  to  the  words  "practice  of  medicine"  a 
construction  sufficiently  broad  to  include  the  practice  of  Chris- 
tian Science  is  clearly  manifest. 

The  words  of  the  provision  against  discrimination,  like  the 
words  "practice  of  medicine,"  nnist  be  taken  in  their  ordinary 
sense  and  meaning.  It  is  a  matter  of  common  knowledge  that 
among  medical  men  there  are  defined  differences  regarding  the 
treatment  of  disease.  These  differences  have  resulted  in  differ- 
ent schools  or  systemu  of  medicine.  A  recognition  of  the  exist- 
ence of  such  differences,  however,  does  not  broaden  the  mean- 
ing of  the  words  "practice  of  medicine"  to  include  the  practice 


'       ! 


f       ^ 


n 


STATE  V.  MYLOD. 


215 


f  ■ 


of  tliat  v'liicli,  in  the  popular  sense,  is  not  a  practice  of  medi- 
cine. Xeitlier  does  the  statutory  reference  to  the  practice  of 
medicine  "in  any  of  its  branches"  affect  the  meaning  of  tlie 
words  in  question.  While  it  is  true  that  the  study  and  treat- 
ment of  mental  disease  constitute  one  of  the  departments  or 
branches  of  medicine  in  which  the  influence  of  the  mind  over 
the  body  is  recognized,  yet  mere  words  of  enconragomont, 
prayer  for  divine  assistance,  or  the  teaching  of  Christian  Sci- 
ence as  testified,  in  the  opinion  of  the  court,  docs  not  constitute 
the  practice  of  medicine  in  either  of  its  branches,  in  the  stat- 
iitory  or  popular  sense. 

To  gi\'o  to  the  words  "practice  of  medicjne"  the  construction 
claimed  for  them  by  the  State,  in  the  opinion  of  the  court, 
would  lead  to  unintended  results.  The  testimony  shows  that 
Christian  Scientists  are  a  recognized  sect  or  school.  They  hold 
conunon  beliefs,  accept  the  same  teachings,  recognize  as  true  the 
same  theories  and  principles.  If  the  practice  of  Christian  Sci- 
ence is  tlie  practice  of  medicine.  Christian  Science  is  a  school 
or  system  of  medicine,  and  is  entitled  to  recognition  by  the 
State  board  of  health  to  the  same  extent  as  other  schools  or  sys- 
tems of  medicine.  Under  said  chapter  1G5  it  cannot  bo  dis- 
criminated against,  and  its  mcnd>ers  are  entitled  to  certificates 
to  practice  medicine,  provided  they  possess  the  statutory  quali- 
fications. The  statute,  in  conferring  upon  the  State  board  of 
health  authority  to  pass  upon  the  qualification  of  applicants  for 
such  certificates,  does  not  confer  upon  said  board  arbitrary 
])ower.  The  board  cannot  determine  which  school  or  system  of 
medicine,  in  its  theories  and  practices,  is  right;  it  can  only  de- 
tonnine  whether  the  applicant  possesses  the  statutory  qualifica- 
tion to  practice  in  accordance  with  the  recognized  theories  of  a 
particular  school  or  system.  It  would  be  absurd  to  hold  that 
under  said  chapter  1G5,  which  provides  against  discrimination, 
the  requirements  necessary  to  entitle  an  applicant  to  a  certificate 
were  such  that  the  mend)ers  of  a  particular  school  or  system 
could  not  comply  with  them,  thus  adopting  a  construction  which 
would  operate  not  as  a  discrimination  only,  but  as  a  prohibition. 
On  the  other  hand,  to  hold  that  a  person  who  does  not  know  or 
]iretoiul  to  know  anything  al)n\it  disease,  or  about  the  method 
of  ascertaining  the  presei'ce  or  the  nature  of  disease,  or  about 


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240 


AMERICAN  CRIMLNAL  REPORTa 


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the  nahire,  preparation,  or  use  of  drugs  or  remedies,  and  who 
never  administers  them,  may  obtain  a  certificate  to  practice 
medicine,  is  to  hold  that  the  operation  of  the  statute  is  to  de- 
feat the  beneficial  purposes  for  which  it  was  enacted. 

The  eases  cited  by  the  State  do  not  sustain  its  contention. 
In  Nelson  v.  Ilanimjton,  72  Wis.  591,  40  N.  W.  Kep.  228,  the 
plaintiff  brought  suit  against  the  defendant,  who  was  a  clairvoy- 
ant physician,  to  recover  damages  for  alleged  imskillful  treat- 
ment. In  testimony  it  appeared  that  the  defendant  held  him- 
self out  as  a  healer  of  disease,  and  accepted  compensation ;  that 
he  determined  the  nature  of  the  disease  for  which  he  treated  the 
plaintiff,  and  the  character  of  the  remedies  he  administered, 
while  in  a  mesmeric  state  or  trance  condition.  The  court  held 
that  the  defendant  was  bound  to  exercise  reasonable  skill,  and 
that  the  knowledge  of  the  plaintiff  of  his  methods  was  no  de- 
fense to  the  action. 

In  Bibber  v.  Simpson,  59  Me.  181,  Avhich  was  an  action 
brought  to  recover  compensation  for  services,  the  opinion  of  the 
court  is  as  follows:  "The  services  rendered  were  medical  in  their 
character.  True,  the  plaintiff  does  not  call  herself  a  physician, 
but  she  visits  her  sick  patients,  examines  their  condition,  de- 
termines the  nature  of  the  disease,  and  prescribes  the  remedies 
deemed  by  her  most  appropriate.  Whether  the  plaintiff  calls 
herself  a  medical  clairvoyant,  or  a  clairvoyant  physician,  or  a 
clear-seeing  physician,  matters  little.  Assuredly,  such  services 
as  the  plaintiff  claims  to  have  rendered  purport  to  be,  and  are 
to  be  deemed,  medical,  and  are  within  the  clear  and  obvious 
meaning  of  Rev.  St.  1871,  eh.  13,  §  3,  which  provides  that  'no 
])er!:on  except  a  physician  or  siu'geon,  who  commenced  prior  to 
February  10,  1831,  or  has  received  a  medical  degree  at  a  public 
medical  institution  in  the  United  States,  or  a  license  from  the 
Maine  Medical  Association,  shall  recover  any  com])ensation  for 
medical  or  surgical  services,  unless  ])reviou3  to  such  services  he 
ha<l  obtnincd  a  certificate  of  good  moral  chiiracter  from  the  mu- 
nicipal officers  of  the  town  when;  he  then  resided.'  The  ])laintiff 
has  not  brought  herself  within  the  provisions  of  this  section  and 
cannot  maintain  this  action." 

In  }Yhecler  v.  Saivyer  (Me.,  1888),  15  Atl.  Rep.  07,  the 
plaintiff,  a  Christian  Scientist,  brought  suit  to  recover  for  serv- 


i.\ 


STATE  V.  MYLOD. 


247 


ices.  Sec.  9,  ch.  13,  Rev.  St.  1883,  is  the  same  as  sec.  3,  ch.  13, 
"Rev.  St.  1871,  except  that  it  does  not  relate  to  physicians  and 
surgeons  practicing  prior  to  February  IG,  1831.  The  plaintiff 
liad  received  the  certificate  of  good  moral  character  required  by 
statute.  The  court  said:  "We  are  not  required  here  to  investi- 
gate Christian  Science.  The  defendant's  intestate  chose  that 
trofitiuent.  There  is  nothing  unlawful  or  immoral  in  such  a 
contract.  Its  wisdom  or  folly  is  for  the  parties,  not  for  the 
court,  to  determine." 

In  State  v.  BusweV ,  40  Xeb.  158,  58  N.  AV.  Rep.  728,  the 
defendant  was  indicted  for  the  unlawful  practice  of  medicine. 
In  Xebraska  (Laws  1891,  ch.  35),  the  practice  of  medicine, 
surgery,  and  obstetrics  is  prohibited  except  by  persons  possessing 
certain  qualifications.  Section  17  of  said  chapter  35,  in  part, 
is  as  follows:  "Sec.  17.  Any  person  shall  be  regarded  as  prac- 
ticing medicine  within  the  meaning  of  this  act  who  shall  oper- 
ate on,  profess  to  heal,  or  prescribe  for  or  otherwise  treat  any 
])liysical  or  mental  ailment  of  another."  The  defendant  was  a 
Christian  Scientist,  and  the  evidence  against  him  upon  which 
the  State  relied  was  similar  in  character  to  that  in  the  case 
under  consideration.  The  trial  court  instructed  the  jury  that, 
in  order  to  convict  the  defendant,  they  must  find  that  the  de- 
fendant had  })ractice(l  medicine,  surgery,  or  obstetrics,  as  those 
terms  are  usually  and  generally  understood,  and  the  State  ex- 
cepted. 

The  Supreme  Court,  in  sustaining  the  exception,  uses  the  fol- 
lowing language:  "Governed  by  the  instruction,  the  jury  could 
not  do  otherwise  than  to  acquit,  for  there  was  no  proof  to  meet 
its  requirements." 

Again :  "The  statute  does  not  merely  give  a  new  definition 
to  language  having  already  a  given  and  fixed  meaning.  It 
rather  creates  a  new  class  of  offenses,  in  clear  and  unambiguous 
liinguage,  which  shouhl  be  interpreted  and  enforced  according 
to  its  terms." 

Again:  "Tender  the  indictment  the  sole  question  presented 
upon  the  evi<1ence  was  whether  or  not  the  defendant,  within  the 
time  charged,  had  operated  on,  or  ])rofessed  to  heal  or  prescril)e 
for,  or  utiierwise  treated,  any  physical  or  mental  ailment  of 
another." 


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248 


AMERICAN  CRIMINAL  REPORTS. 


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The  decision  of  the  Xebraska  court,  therefore,  is  that,  while 
tlie  practice  of  Christian  Science  is  not  a  practice  of  medicine 
as  those  terms  usually  and  generally''  are  understood,  yet  that, 
under  the  section  above  quoted,  the  practice  of  Christian  Sci- 
ence, being  a  treatment  for  physical  or  ment;d  ailments,  is  a  vio- 
lation of  the  law. 

In  ^Missouri  the  statute  requires  that  belore  a  person  may 
lawfully  practice  medicine  or  surgery  he  must  file  a  copy  of  his 
diploma  with  the  clerk  of  the  county  court,  and  it  further  pro- 
vides (Eev.  St.,  §  C304)  that  any  person,  not  qualified,  who 
shall  practice  medicine  or  surgery,  shall  not  be  ])eriniried  to 
recover  compensation  for  services  rendered  "as  any  such  phy- 
sician or  surgeon." 

In  Davidson  v.  Boldman,  37  Mo.  App.  570,  the  plaintif?  hiv- 
ing brought  suit  to  recover  for  services,  the  question  raised  n-as 
whether  the  services  were  performed  by  the  plaintiff  as  a  plysi- 
cian.  The  plaintiff  had  practiced  medicine  lawfully  for  nearly 
thirty  years,  first  as  an  allopathic  physician  and  later  ms  an 
electric  physician.  He  had  a  diploma  from  an  electric  medic  ,1 
college,  but  had  failed  to  file  a  copy  of  it  as  required  by  law. 
The  services  for  which  he  claimed  compensation  consisted  .tf 
electric  treatment.  The  bill  for  services  furnished  the  defend- 
ant described  the  plaintiff  as  "Dr.  T.  P.  Davidson,"  and  the 
plaintiff  called  a  medical  practitioner  to  testify  to  the  value  of 
the  services  in  question.  The  court  of  appeals,  upon  the  testi- 
mony, held  that  the  services  were  performed  by  the  plaintiff  as 
a  physician,  and  that,  not  being  qualified  to  practice,  he  could 
not  recover. 

The  assumption  of  the  title  of  "doctor,"  if  defendant  assumed 
such  title,  was  not  unlawful.  Chapter  105  does  not,  in  terms, 
prohibit  the  use  of  the  word  "doctor"  by  any  person,  whatever 
his  business  or  profession  may  be.  Its  use  is  entirely  innua- 
terial  in  any  ease,  unless  under  such  conditions  or  circum- 
stances, or  in  such  connection,  that  it  may  serve  as  an  announce- 
ment or  indication  of  a  readiness  to  engage  in  the  practice  of 
medicine  or  surgery. 

The  object  of  the  statute  in  question  is  to  secure  the  safety 
and  protect  the  health  of  the  public.  It  is  based  upon  the  as- 
sunq)tion  that  to  allow  incompetent  persons  to  determine  the 


STATE  V.  MYLOD. 


2rt9 


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y 


nature  of  disease,  and  to  prescribe  remedies  tliercfor,  would  re- 
sult in  injury  and  loss  of  life.  To  protect  the  public,  not  from 
theories,  but  from  the  acts  of  incompetent  persons,  the  legis- 
lature has  prescribed  the  qualifications  of  those  who  may  be  en- 
titled to  perform  the  important  duties  of  medical  practitioners. 
The  statute  is  not  for  the  piirpose  of  compelling  persons  sufler- 
ing  from  disease  to  resort  to  remedies,  but  is  designed  to  secure 
to  those  desiring  remedies  competent  physicians  to  prepare  and 
administer  them.    See  Smith  v.  Lane,  24  Ilun,  G32. 

The  opinion  of  the  court  is  that  the  words  "practice  of  modi- 
cine,"  as  used  in  Gen.  Laws  R.  I.,  ch.  1G5,  must  be  construed 
to  relate  to  the  in-actice  of  medicine  as  ordinarily  and  popularly 
understood,  and  that  the  acts  of  the  defendant  do  not  constitute 
a  violation  of  said  chapter.  The  court  therefore  cannot  properly 
pass  upon  the  constitutional  question  raised,  for  the  rights  of 
tlie  defendant  would  not  be  affected  by  any  conclusion  at  which 
the  court  might  arrive. 

NoTKS  (by  J.  F.  G.). — If  the  trial  court  had  no  jurisdiction  to  hear 
and  determine  the  subject-matter,  an  appellate  review  of  the  evidence 
is  superficial. — In  a  prosecution  for  a  supposed  criminal  offense,  com- 
menced by  a  complaint,  the  trial  court  obtained  the  jurisdiction,  if 
any,  from  the  facts  charged  in  the  complaint.  Moore  v.  T  'tts,  1  111. 
18;  Hoiish  V.  People,  75  111.  487;  fiarah  Way's  Case,  41  Mich.  299,  1 
N.  W.  Rep.  1021;  Ex  parte  Dimmig,  74  Cal.  164,  15  Pac.  Rep.  619; 
Armstrong  v.  Vandevaner,  21  Wash.  682,  59  Pac.  Rep.  510;  Ex  parte 
Lane.  34  Fed.  Rep.  34. 

The  complaint  in  the  case  under  consideration  does  not  set  out  the 
acts  constituting  the  supposed  offense  (State  v.  Fisk,  18  R.  I.  416,  28 
Atl.  Rep.  348;  State  v.  Murray,  41  Iowa,  580;  Qlenn  rf  Torrey  v.  People, 
17  111.  105;  Sarah  Way's  Case,  supra;  Vandever  v.  State,  11  Am.  Crlm. 
Rep.  355;  notes,  p.  3G9;  but  if  the  charge  is  sufficient  to  bring  the  mat- 
ter within  the  terms  of  a  void  act  of  the  legislature,  and  show  a  con- 
dition in  which  the  sovereign  power  of  the  constitution  shields  the  ac- 
cused from  prosecution,  the  entire  proceeding,  being  without  authority 
of  law.  Is  coram  non  judice.  In  such  case  there  is  no  basis  for  legiti- 
mate evidence  to  be  considered  by  a  court  whose  charter  is  the  con- 
stitution. "The  constitution  can  establish  no  tribunal  with  power  to 
abolish  that  which  gave  and  continues  such  tribunal  in  existence." 
Phoehe  v.  Jay,  1  111.  207. 

The  court,  attracted  by  the  novelty  of  a  proceeding,  may  have  deemed 
the  points  passed  upon  a  refreshing  relief  from  the  flood  of  serious 
matteis  and  perplexing  subjects  that  vexes  the  judicial  mind,  and 
may  have  acted  wisely  in  not  octupying  valuable  time  in  solving 
deeper  problems  of  law;  but  such  fact  does  not  justify  the  announce- 


;    ' 


)  . 


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i.    h'' 


)  i\ 


250 


AMERICAN  CRIMINAL  REPORTa 


ment  of  the  fallacious  doctrine  that,  as  a  general  rule,  a  proceeding 
prima  facie  void  must  be  recognized  as  valid,  until  the  proofs  are  sub- 
mitted sustaining  the  merits  of  a  case  which  in  its  inception  has  no 
merit. 


Spicer  v.  Commonwealth. 

21  Ky.  Law  Rep.  528—51  S.  W.  Rep.  802. 

Decided  June  15,  1899. 

Confessions:  Statements  not  amounting  to  a  confession — Instructions 

thereon. 

On  indictment  for  hog  stealing,  the  fact  that  several  defendants  said 
they  found  the  hog  after  it  had  been  killed  by  dogs  does  not 
amount  to  a  confession.  It  was  error  to  refer  to  the  same  in  an 
instruction  as  a  confession. 

Appeal  from  the  Circuit  Court  of  Breathitt  County. 
James,  Stephen  and  William  Spicer,  being  convicted  of  hog 
stealing,  appeal. 

R.  A.  Ilurst  and  W.  H.  Bhnion,  for  the  appellants. 

^y.  S.  Taylor  and  N.  II.  Thatcher,  for  the  Commonwealth. 

BuRXA^r,  J.  This  is  an  appeal  from  the  judgment  of  the 
Breathitt  circuit  court  sentencing  each  of  the  appellants  to  the 
penitentiary  for  a  term  of  two  years  for  the  crime  of  hog  steal- 
ing. 

It  is  insisted  for  the  appellants  tliat  there  is  no  evidence  to 
support  the  verdict  and  judgment,  and  that  the  court  erred  to 
their  prejudice  in  the  instructions  given  on  the  trial. 

Tlie  testimony  in  the  case  is  meager.  John  Arrowood  testi- 
fied that  in  July,  1S98,  he  lost  a  spotted  sow  which  weighed 
about  j.jO  pounds,  and  was  worth  about  $5;  that  he  received 
_  information  that  a  hog  had  been  killed  in  the  road  on  Lick 
branch,  about  one  mile  from  where  he  lived,  and  in  the  neigh- 
borhood in  which  appellants  lived ;  that  he  went  to  the  ]daco 
where  he  had  been  informed  the  hog  had  been  killed,  and  foiuid 
the  head  of  a  hog  covered  up  with  leaves,  that  looked  like  his, 
but  that  he  did  not  know  who  killed  it;  that  appellants  James 


SPICER  V.  COMMONWEALTH. 


251 


Splcer  and  William  Spicer  testified  on  the  examining  trial  that 
tlicy  had  found  the  hog  dead  just  above  where  they  lived,  and 
luid  skinned  it  and  carried  it  home;  that  appellant  Stephen 
S])it'er  had  not  been  arrested,  was  not  present,  and  did  not  tes- 
tify on  the  examining  trial ;  and  that  the  head  he  found  in  the 
leaves  looked  like  it  had  been  mashed.  Sam  Stidhara  testified  he 
was  at  the  examining  trial,  and  heard  Stephen  Spicer  and  James 
S])i('cr  testify  in  their  own  behalf,  and  that  they  each  stated  that 
they  had  found  the  hog,  and  took  it  home  and  ate  it.  A.  D. 
Strong  testified  that  he  found  the  foot  of  a  hog  on  the  branch 
a  short  distance  from  appellants'  field,  but  that  he  did  not  know 
whose  hog  it  was.  George  Fields  testified  that  some  time  in 
June  or  July  he  saw  James  Spicer  and  William  Spicer  go  up 
tlio  creek  by  his  house,  and  that  they  informed  him  that  they 
had  learned  some  dogs  had  killed  a  hog  upon  the  creok,  and  they 
were  going  up  to  see  abo\it  it ;  that  in  an  hour  or  two  after  they 
came  back  down  the  creek,  carrying  ten  or  fifteen  pounds  of 
meat  apiece,  and  that  Jelf  Spicer  was  with  them,  but  that  Ste- 
phen Spicer  was  not  along;  that  they  said  they  had  found  the 
hog  where  the  dogs  had  killed  it,  and  had  skinned  it  and  were 
ciirrying  it  home,  and  said  that  they  would  pay  the  owner — who- 
ever he  was — for  the  hog.  George  Deaton  testified  that  he  was 
present  at  the  examining  trial,  and  heard  James  Spicer  and 
Sti'phen  Spicer  testify  in  their  own  behalf,  and  that  they  testi- 
fied that  they  had  found  the  hog,  took  it  home,  and  ate  it.  This 
was  all  the  testimony  for  the  Commonwealth. 

Appellants  James  and  William  Si)icer  testified  that  they  had 
received  information  that  their  (Ktgs  had  killed  a  hog  upon  the 
branch  above  their  fiiKl,  and,  in  conqtany  with  tlunr  brother  Jeff 
S|)i('('r,  tiicy  went  np  to  where  they  had  leai'ned  the  dogs  had 
killed  the  h^g,  and  found  the  carcass  of  a  hog  which  had  Ih'cu 
killed  a  short  time  before  by  dogs,  and  that  they  concluded  to 
skill  it  and  take  it  home,  and,  if  the  owner  came  for  it,  they 
Avonld  pay  for  the  value  of  the  hog.  Stephen  Spicer  testified 
positively  that  he  was  not  present  when  the  hog  was  killed  or 
skinned,  and  that  he  did  not  have  anything  to  do  with  it. 

It  seems  to  us  that  there  is  no  proof  which  connects  the  ap- 
pellant Stephen  Spicer  with  the  crime  for  which  he  is  convicted. 
Xo  witness  testifies  that  he  was  present  when  the  hog  was  killed, 


! 


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252 


AMERICAN  CRIMINAL  REPORTS. 


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or  that  lie  was  seen  in  possession  of  any  of  the  meat.  It  is  tnio 
that  two  of  the  witnesses  for  the  Connuonwealth  say  that  he  testi- 
fied at  the  examining  trial,  and  that  he  was  present,  bnt  in  view 
of  the  testimony  of  Arrowood,  the  party  whoso  hog  was  stoji'u, 
that  he  was  not  present  at  the  examining  trial,  and  had  not  at 
that  time  been  arrested,  it  would  seem  that  the  witnesses  have 
8im])ly  confounded  him  with  his  brother  William  Spiccr,  who 
did  testify  on  that  occasion ;  and,  so  far  as  he  is  concerned,  the 
proof  entirely  fails  to  connect  him  with  the  crime,  and  the  mo- 
tion for  a  peremptory  instruction  should  have  prevailed. 

The  third  instniction  given  to  the  jury  by  the  court  is  in  these 
words:  "The  jury  cannot  convict  the  defendant  upon  confes- 
sions made  out  of  open  court,  unless  the  same  is  corroborated  by 
other  evidence  that  the  oifense  was  committed,  and  tending  to 
connect  the  defendants  with  its  commission."  "A  confession,  in 
criminal  law,  is  a  voluntary  statement  made  by  a  person  charged 
with  the  commission  of  a  crime  or  misdemeanor,  communicated 
to  another  person,  wherein  he  acknowledges  himself  to  bo  guilty 
of  the  offense  charged,  and  discloses  the  circumstances  of  the 
act,  or  the  share  and  participation  which  he  had  in  it."  See 
Black's  Law  Dictionary. 

There  is  no  testimony  in  the  record  that  either  of  the  appel- 
lants ever  made  a  confession  or  acknowledgment  of  their  guilt 
of  the  offense  charged.  On  the  contrary,  they  most  emphatically 
deny  their  guilt,  and  testify,  both  on  the  examining  and  in  the 
final  trial,  to  facts  which  conduce  to  show  their  innocence.  We 
therefore  think  that  this  instruction  was  misleading  to  the  jury, 
and  highly  prejudicial  to  appellants.  The  court,  in  substance, 
told  the  jury  that  appellants  had  confessed  their  guilt,  but  that, 
notwithstanding  such  confession,  they  nmst  not  convict  thom 
unless  there  was  other  proof  tending  to  connect  them  with  the 
crime.  The  instruction  seems  to  have  no  application  to  any  fact 
which  was  in  evidence  on  the  trial,  and  should  not  have  been 
given. 

For  the  reasons  indicated,  the  judgment  in  each  ease  is  re- 
versed, and  the  cause  remanded  for  proceedings  consistent  with 
this  opinion. 

Notes  (by  J.  F.  G.). — A  very  valuable  and  Interesting  decision,  both 
as  to  what  is  a  confession,  and  as  to  what  circumstances  will  invali- 


UliECN  V.  STATE. 


253 


(late  a  confession,  Is  that  of  Carson  v.  State,  36  S.  C.  524,  15  S.  E.  Rep. 
588,  (lecUletl  July  4,  1S92.  The  defendants,  Eddie  Carson  and  Henry 
Smith,  were  Indicted  for  the  murder  of  Charles  Jenkins.  From  the 
evidence  it  appeared  that  ihe  defendants  and  the  deceased,  all  colored 
lads,  came  together  on  June  G,  1891  as  servants  waiting  upon  familiea 
at  a  picnic  on  the  banks  of  a  river.  About  noon  Jenkins  was  missed 
and  no  trace  was  found  of  him,  until  his  body  was  discovered  on  June 
10th  floating  in  the  river.  There  was  a  contused  wound  over  the  left 
eye  of  the  body,  a  gash  evidently  made  with  a  sharp  instrument  on 
the  lower  part  of  the  abdomen;  but  the  condition  indicated  death  from 
drowning.  When  last  seen  the  three  boys  were  in  company,  and  about 
the  time  the  deceased  was  missed,  the  defendants  came  up  from  the 
river  claiming  they  know  nothing  of  him;  one  of  them,  however,  a 
little  after  said  that  Jenkins  had  complained  of  having  a  headache 
and  went  to  a  camp  where  certain  men  were  working  upon  a  railroad. 
When  the  body  was  found,  the  defendants  were  arrested,  tied  to  a 
tree  and  guarded  during  the  night.  Efforts  were  made  to  obtain  a  con- 
fession; and  while  no  direct  threats  were  made,  various  remarks  were 
Indulged  in  within  the  hearing  of  the  defendants,  to  the  effect  that 
they  deserved  hanging,  etc.  A  coroner's  jury  was  Impaneled  and  in- 
quest held;  the  coroner  himself  having  an  Interview  with  the  defend- 
ants. The  defendants  finally,  while  prisoners,  each  signed  a  written 
statement,  in  which  he  declared  that  it  was  made  freely  and  volun- 
tarily, admitted  his  presence  at  the  time  of  Jenkins'  death,  but  accused 
the  other  prisoner  of  the  murder.  These  statements  were  read  in  evi- 
dence at  the  trial  and  both  defendants  were  convicted.  The  conviction 
was  reversed,  the  Supreme  Court  holding  that  improper  inducements 
had  been  held  out  for  the  purpose  of  obtaining  a  confession;  that  the 
statements  In  writing  by  the  defendants  that  the  same  was  voluntary 
amounted  to  nothing;  and  that  in  fact  the  statements  themselves  were 
not  confessions,  in  that  each  one  positively  denied  guilt  on  his  part, 
but  accused  the  other.  The  court  held  that  neither  statement  was  ad- 
niissihle  against  the  party  making  it,  and  was  highly  prejudicial  as  to 
the  co-defendant.  This  case  stands  as  a  leading  case,  but  the  opinion 
Is  too  lengthy  to  give  In  full  as  a  part  of  these  notes,  and  Is  not  cap- 
able of  being  reduced  into  extracts;  accordingly,  this  general  review 
of  it. 


,  >:> 


Grkkx  v.  State. 

40  Fla.  474—24  So.  Rep.  537. 

Decided  October  18,  1898. 

Confessions:  Statements  by  accused  at  preliminary  examination — In- 
structions with  forms  of  verdict. 

1.  In  order  to  render  a  confession  of  guilt  voluntary  and  admissible 
In  evidence,  the  mind  of  the  accused  must  at  the  time  be  free  to 


i. 

Hi  ^    i 

; 

i 

i 

' 

J- 

251 


AMERICAN  CRIMINAL  REPORTS. 


act,  uninfluenced  by  fear  or  hope;  and  that  the  confession  was 
BO  voluntarily  made  must  first  be  clearly  shown  before  the  Intro- 
duction of  the  confession  in  evidence. 

2.  Confessions  should  be  acted  on  by  courts  and  Juries  with  great 

caution. 

3.  On  a  preliminary  examination  before  a  county  judge,  an  accused 

was  informed  by  the  court  when  arraigned  that  it  was  discre- 
tionary with  him  what  he  should  plead;  that,  if  he  plead  not 
guilty,  It  would  be  the  duty  of  the  court  to  see  that  there  was 
sufficient  evidence  before  holding  him,  and,  if  he  plead  guilty,  he 
would  be  held;  that  he  was  not  forced  to  say  anything  that  would 
criminate  himself,  and  wha^  he  did  say  might  be  used  against 
him.  Held,  that  a  plea  of  guilty,  made  under  the  circumstances 
stated,  was  properly  admitted  in  evidence,  over  the  objection  that 
it  was  not  shown  to  be  voluntary. 

4.  The  fact  that  an  accused  has  entered  a  plea  of  not  guilty  to  an 

Indictment  in  the  circuit  court  does  not  debar  the  State  from  in- 
troducing in  evidence  a  voluntary  confession  of  the  offense 
charged  in  the  indictment,  made  by  the  accused  in  the  investigat- 
ing court  on  a  preliminary  examination. 

5.  On  a  charge  of  murder,  the  court  instructed  the  Jury  as  to  the  dif- 

ferent grades  of  the  offense,  and  what  constituted  manslaughter; 
that  they  were  the  sole  Judges  of  the  evidence,  and  should  deter- 
mine from  all  of  it,  after  full  consideration,  what  were  the  facts 
in  the  case,  and  render  a  verdict  accordingly;  that  the  accused 
was  presumed  to  be  innocent  until  the  State  proved  his  guilt  be- 
yond a  reasonable  doubt,  and,  if  they  had  such  a  doubt,  they 
should  acquit  him,  but,  if  they  found  him  guilty,  they  should  say 
80,  and  determine  the  degree  of  the  offense.  Held,  that  it  was 
not  error  to  follow  the  charge  given  with  a  form  of  verdict  in  the 
event  of  a  conviction,  without  also  submitting  a  form  of  verdict 
in  case  of  acquittal,  no  request  being  asked  by  the  accused  on  the 
subject. 

(Syllabus  by  the  Court.) 


Error  to  the  Circuit  Court  for  Santa  Rosa  County. 
Jonah  Green,  being  convicted  of  murder,  brings  error, 
firmed. 


Af- 


Daniel  Campbell,  for  the  plaintiff  in  error. 
William  B.  Lamar,  Atty.  Gen.,  for  the  State. 


Mabky,  J.  Plaintiff  in  error  was  indicted  for  the  murder 
of  one  Sallie  Brown,  and  was  convicted  of  the  offense  charged. 
On  a  writ  of  error  from  the  judgment  of  the  circuit  court,  three 
errors  are  assigned :  (1)  The  court  erred  in  allowing  the  county 
judge  to  testify  as  to  the  plea  and  confession  made  in  his  court 


GREEN  V.  STATE. 


255 


■I 


by  the  defendant.  (2)  The  court  erred  in  giving  in  its  chnrge 
n'form  of  verdict  if  the  jury  found  the  defendant  guilty,  and  in 
not  giving  the  form  of  verdict  if  they  found  him  not  guilty, 
(y)  The  court  erred  in  overruling  defendant's  motion  for  a  new 

trial. 

The  State  examined  four  witnesses  who  fully  sustained  the 
charge  of  murder  against  the  accused.  All  four  of  the  witnesses 
were  present,  and  saw  the  killing,  which  was  without  just  prov- 
ocation or  excuse.  Intimate  relations  had  existed  between  the 
accused  and  deceased  for  three  months  before  the  killing.  On 
the  night  of  the  killing,  they  were  together  in  a  house  where 
the  four  witnesses  examined  by  the  State  were,  and  the  deceased 
went  out  of  a  back  door,  and  the  accused  left  the  house  through 
the  front  door.  They  engaged  in  a  quarrel  on  the  outside  of  the 
house  for  a  few  moments,  and  then  appeared  together  at  the 
front  door.  The  accused  kicked  or  pushed  the  deceased  into  the 
house,  and  went  in  himself,  stopping  near  the  fireplace.  The 
deceased  immediately  cursed  the  accused,  and  said  she  had  had 
another  man,  naming  him,  and  was  going  to  keep  him.  No 
demonstration  of  personal  violence  towards  the  accused  by  the 
deceased  was  shown,  other  than  the  abusive  language  used  by 
her,  and  this  was  after  she  had  been  kicked  or  violently  pushed 
into  the  house.  When  the  deceased  said  she  was  going  to  keep 
the  other  man,  the  accused  drew  a  pistol  and  discharged  it  five 
times  at  the  deceased,  three  of  the  balls  penetrating  her  body, 
and  producing  almost  instant  death.  The  four  witnesses  who 
testified  for  the  State  were  in  the  house  at  the  time,  and,  with 
slight  variation,  agree  in  their  statements  of  what  occurred. 

After  the  examination  of  the  four  v/itnesses,  the  State  had 
sworn  the  county  judge  of  the  county  before  whom  an  examina- 
tion of  the  charge  against  the  accused  was  had.  lie  was  asked 
what  the  accused  said  in  his  court.  This  question  was  objected 
to,  "because  the  State  had  not  shown  it  to  be  a  voluntary  con- 
fession, and  because  it  called  for  the  defendant's  plea  in  the  pre- 
liminary hearing  after  he  had  already  plead  not  guilty  to  the 
indictment."  Before  answering  the  question,  the  witness  said 
that  he  first  told  the  accused  that  it  was  discretionary  with  him 
what  he  should  plead ;  if  he  plead  not  guilty,  it  was  the  duty  of 
witness  to  see  that  there  were  sufficient  grounds  to  hold  him ;  if 


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AMERICAN  CRIMINAL  REPORT& 


he  plead  guilty,  he  would  be  held ;  that  he  was  not  forced  to  say 
anything  that  woiUd  criminate  himself,  and  what  he  did  say 
might  be  used  against  him.  The  court  permitted  the  question 
to  be  answered,  and  the  witness  stated  that  he  read  the  warrant 
to  the  accused,  and  he  pleaded  guilty.  lie  was  asked  what  ho 
killed  the  woman  for,  and  he  said  he  was  mad  with  her.  On 
cross-examination  the  witness  stated  that  he  did  not  think,  from 
the  apiDcarance  and  what  he  knew  of  the  accused,  that  he  was 
sufficiently  intelligent  to  know  the  different  grades  of  crime  of 
which  he  might  be  guilty  for  killing  a  person.  A  motion  was 
then  made  to  rule  out  the  testimony  of  this  witness  on  same 
grounds  above  stated,  and  this  motion  was  overruled.  The  ac- 
cused introduced  no  testimony,  and  the  verdict  was  for  murder 
in  the  first  degree. 

The  objections  made  to  the  testimony  in  the  trial  court  were — 
First,  it  was  not  shown  to  be  voluntary ;  and,  second,  becaxise  it 
called  for  the  plea  of  the  defendant  in  the  examining  court  after 
he  had  interposed  the  plea  of  not  guilty  to  the  indictment.  The 
general  rule,  recognized  by  our  decisions,  is  that,  to  render  a 
confession  voluntary  and  admissible  in  evidence,  the  mind  of 
the  accused  must  at  the  time  be  free  to  act,  iminfluenced  by  fear 
or  hope ;  and,  before  confessions  of  crime  can  be  offered  in  evi- 
dence against  an  accused,  it  must  be  clearly  shown  that  they 
were  voluntarily  made.  Such  confessions  should  be  acted  upon 
by  courts  and  juries  with  great  caution.  Simon  v.  State,  5  Fla. 
285 ;  Mwray  v.  State,  25  Fla.  528,  6  So.  Rep.  498 ;  Coffee  v. 
State,  25  Fla.  501,  6  So.  Rep.  493.  In  the  case  last  cited,  it  is 
held  that,  when  a  person  charged  with  crime  is  brought  before  a 
justice  of  the  peace  or  other  officer  for  preliminary  examination, 
it  is  the  duty  of  the  officer  to  caution  the  accused  that  any  state- 
ment or  confession  he  may  make  may  be  used  against  him,  and 
to  inform  him  of  his  rights  in  the  premises.  In  the  case  of 
Regina  v.  Baldry,  2  Denison,  C.  C.  430,  which  was  thoroughly 
considered,  a  police  constable,  who  arrested  a  man  on  a  charge 
of  murder,  informed  him  of  the  nature  of  the  charge,  and  fur- 
ther stated  to  him  that  he  need  not  say  anything  to  criminate 
himself,  and  what  he  did  say  would  be  taken  down  and  used  aa 
evidence  against  him.  Thereupon  a  confession  of  the  crime  was 
made,  and  it  was  held  that  the  confession  was  rightly  admitted 


GREEN  V.  STATE. 


257 


in  evidence.  The  same,  in  effect,  was  ruled  in  the  case  of 
Eegina  v.  Aiiwood,  5  Cox's  C.  C.  322. 

It  appears  from  the  stattaient  given  that  the  county  judge 
sufficiently  informed  the  accused  of  his  rights  in  the  premises, 
and  duly  cautioned  him  that  any  statement  or  confession  he 
should  make  might  be  used  against  him.  This,  clearly,  would 
be  so  with  a  person  capable  of  comprehending  his  rights.  We 
do  not  understand,  from  the  statement  of  the  county  judge  in 
reference  to  the  capacity  of  the  accused  to  distinguish  between 
the  degrees  of  the  offense  of  killing  a  person,  that  he  was  not 
capable  of  comprehending  and  fully  realizing  what  was  told 
him,  and  his  rights.  Technical  knowledge  is  required  in  some 
cases  to  distinguish  the  degrees  of  offense  in  the  taking  of  life, 
and  it  imputes  no  want  of  capacity  to  plead  to  the  charge  of 
murder  that  the  accused  did  not  know  the  different  degrees  of 
the  offense.  Our  statute  provides  that,  "when  the  jury  find  the 
defendant  guilty  under  an  indictment  for  murder,  they  shall 
ascertain  by  their  verdict  the  degree  of  unlawful  homicide  of 
which  he  is  guilty,  but  if  the  defendant  on  arraignment  con- 
fesses his  guilt,  the  court  shall  proceed  to  determine  the  degree 
upon  an  examination  of  the  testimony,  and  pass  sentence  ac- 
cordingly." Under  this  statute,  the  accused  can  only  be  pun- 
ished for  such  degree  of  the  offense  charged  against  him  as  the 
testimony  discloses ;  and  this,  notwithstanding  a  full  confession 
of  guilt.  Aside  from  the  confession  of  the  accused  as  given  by 
the  county  judge,  the  testimony  of  four  witnesses,  without  con- 
tradiction, establishes  the  guilt  of  the  accused  of  murder  in  the 
first  degree. 

The  other  ground  of  objection  to  the  testimony  is  without  any 
force.  The  authorities  cited  by  counsel  on  this  ground  sustain 
the  view  that  when  an  accused  first  pleads  guilty  to  a  charge, 
and  afterwards,  by  permission  of  the  court,  is  allowed  to  with- 
draw such  plea,  and  put  in  the  general  issue,  the  plea  of  con- 
fession allowed  to  be  withdrawn  cannot  be  put  in  evidence  on 
the  trial.  That  is  not  the  case  here.  The  accused  never  asked 
to  retract  or  withdraw  what  he  stated  before  the  county  judge ; 
and  his  statement  there,  l)eing  voluntary,  could  be  used  against 
him  on  the  trial  in  the  circuit  court. 

It  is  argued  in  brief  here  that  the  State  should  not  have  been 
Vou  XI -17 


I! 


,ii!. 


258 


AMERICAN  CRIMINAL  REPORTS. 


I 


alloweJ  to  prove  the  pica  of  the  accused  before  the  county  judge 
l)y  parol  testimony,  and  the  written  plea  should  have  been  in- 
troduced. Xo  such  objection  as  this  was  made  in  the  trial  court, 
and,  in  addition,  it  nowhere  appears  that  any  record  was  ever 
made  of  defendant's  plea  in  the  county  judge's  court. 

The  next  assignment  of  error  relates  to  the  form  of  the  ver- 
dict given  by  the  court  in  case  the  jury  should  find  the  defend- 
ant guiltv.  It  is  not  claimed  that  the  court  erred  in  the  form 
given  to  the  extent  it  went,  but  the  ground  of  exception  is  that, 
along  with  the  form  given  in  case  of  a  verdict  of  guilty,  the 
court  should  have  stated  a  form  in  the  event  of  an  acquittal.  Xo 
request  was  made  for  any  additional  charge  or-  further  explana- 
tion as  to  the  form  of  verdict. 

On  looking  at  the  charge  of  the  court,  we  find  that  the  judge, 
after  stating  to  the  jury  the  different  grades  of  the  offense  of 
nuirder,  and  what  constituted  manslaughter,  instructed  them 
that  they  were  the  sole  judges  of  the  evidence,  and  would  deter- 
mine for  themselves,  from  a  full  consideration  of  the  whole  evi- 
dence, what  the  facts  were  in  the  case,  and  to  render  a  verdict 
accordingly;  that  the  defendant  was  presumed  innocent  until 
the  State  proved  his  guilt  beyond  a  reasonable  doubt,  and,  if 
they  had  a  reasonable  doubt  of  his  guilt,  they  would  find  him 
not  guilty.  The  court  further  instructed  that,  if  the  jury  foimd 
the  accused  giiilty,  they  should  say  so,  and  determine  the  degree 
of  the  offense.  In  the  event  of  a  conviction,  the  form  of  the 
verdict  fixing  the  offense  was  submitted.  We  discover  no  error 
'•hatever,  in  the  charge  given  by  the  court  as  to  the  form  of  the 
verdict. 

The  only  remaining  assignment  of  error  is  that  the  court  im- 
properly overruled  defendant's  motion  for  a  new  trial.  The 
only  ground  of  this  motion  not  already  considered  is  that  the 
evidtace  is  not  sufficient  to  sustain  the  verdict.  In  the  state- 
ment of  facts  already  given,  our  views  as  to  the  sufficiency  of 
the  evidence  to  sustain  the  verdict  are  clearly  foreshadowed. 
We  entertain  no  doubt  on  this  point.  The  testimony  of  the  four 
eyewitnesses  to  the  killing  is  amply  sufficient  to  sustain  the  ver- 
dict. 

The  judgment  must  be  affirmed. 


GUIN  V.  STATE 


259 


GuiN  V.  State. 

Texas  Court  of  Crim.  App.— 50  S.  W.  Rep.  350. 

Decided  March  1,  1899. 

Confessions:  Jnaufflcient  warning  by  sheriff — Convict  not  a  competent 
witness;  but  his  acts  admissible. 

1.  A  warning  given  by  a  sheriff  to  his  prisoner,  that  anything  he 

would  say  could  be  used  for  or  against  him,  is  of  the  nature  of 
an  in<iucement  or  persuasion,  and  does  not  render  the  confession 
admissible,  under  the  statute  which  provides  that  it  cannot  be 
used,  "unless  it  be  made  voluntarily  after  b&ving  been  cautioned 
thut  it  may  be  used  against  him." 

2.  The  ov.'ier  of  stolen  cattle,  beinc  a  convict,  cannot  testify;    nor 

can  his  statements  be  given  in  evidence;  but  his  actions  and  con- 
duct may  be  shown,  as  proof  that  the  cattle  were  taken  without 
his  consent. 

Appeal  from  the  District  Court  of  Baylor  County ;  Hon.  S.  I. 
Xewton,  Judge. 

W.  T.  Guin,  being  convicted  of  theft,  appeals.    Keversed. 

J.  H.  Glasgow  and  L.  W.  Dalton,  for  the  appellant. 
Hobt.  A.  John,  Asst.  Atty.  Gen.,  for  the  State. 

Henderson,  J.  Appellant  was  convicted  of  the  theft  of 
cattle,  and  his  punishment  assessed  at  two  years'  confinement  in 
the  penitentiary ;  hence  this  appeal. 

As  material  testimony  against  appellant,  the  State  introduced 
his  confession  made  to  the  sheriff  while  under  arrest.  The 
Avarning  given  by  the  sheriff  was  to  the  effect  that  he  told  ap- 
pellant, after  he  had  arrested  him,  that  anything  he  would  say 
could  be  iised  for  or  against  him.  After  this  warning  given,  it 
is  shown  that  the  State  introduced  from  the  sheriff  the  state- 
ment of  appellant  that  he  got  the  cattle  at  Unsell's.  This  state- 
ment was  used  as  a  criminative  fact  against  appellant,  by  show- 
ing that  it  was  unreasonable  that  he  could  have  driven  the  cat- 
tle from  whence  they  had  been  stolen  to  Unsell's,  and  then  to 
the  place  where  they  were  found.  The  warning  given  here  was 
not  in  accordance  with  the  statute.  When  it  is  shown  that  a  de- 
fondant  is  under  arrest,  the  statute  (Code  Cr.  Proc.  art.  750) 
provides  that  "a  statement  made  by  him  capnot  be  used  unless 


;:(  ? 


if,  ,J'I 


lis 


'  '^fi 


li'" 

1    :; 


I* 


I 


m 


i;i;  .  i 


2C0 


AMERICAN  CRIMINAL  REPORTa 


it  be  made  voluntarily  after  having  been  first  cautioned  that  it 
may  be  used  against  him."  Xow,  .when  a  warning  is  that  any 
statement  he  may  make  may  be  used  for  him,  it  is  suggestive 
of  inducement  or  persuasion.  We  hold  that,  in  order  to  render 
the  statement  made  under  ai'rest  admissible,  at  least  the  substan- 
tial terms  of  the  statute  shall  be  used;  otherwise  the  statomcnt 
or  declaration  made  Is  not  admissible.  See  Guinn  v.  Slate,  3D 
Texas  Crim.  Rep.  257,  45  S.  W.  Rep.  G94. 

It  also  appears  in  this  case  that  ITarvcy,  the  owner  of  flic 
alleged  stolen  cattle,  was  a  convict,  ..nd  could  not  testify.  The 
State  was  permitted,  over  appellant's  objections,  to  prove  certain 
acts  of  said  prosecutor  Harvey  in  search  for  said  cattle,  and  in- 
quiries made  by  him  for  them.  The  objection  is  made  to  this 
testimony  that,  inasmuch  as  Harvey  could  not  be  a  witness,  any 
acts  or  statements  made  by  him  with  reference  to  said  cattle 
could  not  be  used  as  evidence.  This  is  true,  in  a  qualified  sense. 
We  do  not  believe  that  any  statements  or  declarations  of  his 
could  be  used  as  evidence  to  prove  the  theft  of  said  cattle.  But 
we  hold  that  his  want  of  consent  to  the  taking  of  said  cattle 
could  be  proved  by  circumstances, — such  as  searching  for  the 
cattle  shortly  after  they  were  missed, — and  the  proof  should 
have  been  confined  alone  to  this  issue  of  consent  vel  non.  The 
judgment  is  reversed,  and  the  cause  remanded. 

Davidson,  P.  J.,  absent. 

Note  (by  J.  F.  G.). — Another  Texas  case,  practically  In  the  same 
line  as  the  above  decision,  is  that  of  Rix  v.  State,  33  Tex.  Crim.  Rep. 
353,  26  S.  W.  Rep.  505,  decided  May  9,  1894.  In  reversing  the  convic- 
tion, which  was  for  cattle  theft,  the  court  said: 

"Appellant  further  complains  that  the  court  erred  in  admitting  in 
evidence  p  letter  written  by  appeljant  to  Dave  Odom,  the  sheriff,  after 
the  interview  in  the  jail.  To  the  admission  of  this  the  defendant  duly 
excepted.  There  is  no  question  appellant  was  in  jail  when  the  letter 
was  written.  Not  having  been  warned,  no  statement,  written  or  verbal, 
while  in  jail,  can,  under  the  law,  be  admitted  in  evidence  against  him. 
An  examination  of  the  letter  shows  that  it  is  an  assertion  of  his  inno- 
cence, but  it  also  contains  the  admission  that  appellant  had  put  Sheriff 
Odom  on  the  trail  of  the  Gallaghers,  and,  had  he  not  done  so,  they 
could  not  have  been  found  out.  The  evident  purpose  of  introducing 
the  letter  was  to  show  appellant's  knowledge  of,  and  connection  with, 
the  crime.  To  the  same  end  was  introduced  the  fact  that  Odom  con- 
versed with  appellant  in  jail  before  he  arrested  the  Gallaghers;  also, 
the  letter  of  date  September,  1893,  introduced  by  the  State,  written  by 


COMMONWEALTH  v.  WILS3N. 


201 


appellant  to  the  district  attorney,  offering  to  testify  against  the  Gal- 
laghers whenever  he  was  wanted.  The  court  erred  in  admitting  the 
letter  to  Sheriff  Odom.  It  was  a  strongly  inculpatory  fact  that  he, 
only,  was  able  to  put  the  sheriff  on  the  track  of  the  guilty  parties,  for 
it  tended  to  corroborate  the  statement  of  the  witness  Gallagher;  but 
the  evidence  to  prove  such  a  fact  must  be  legal  and  admissible.  The 
court  should  not  have  permitted  proof  of  what  the  sheriff  did  after  con- 
versing with  appellant,  nor  should  he  have  permitted  the  letter  to  be 
Introduced." 


Commonwealth  v.  Wilson", 


186  Pa.  St.  1—40  Atl.  Rep.  283. 

Decided  May  9,  1898. 

Confessions:  Homicide:  Tricks  of  detectives — Incompetent  evidence^' 

Practice. 

1.  Where  evidence  io  prove  a  conspiracy  to  rob  deceased,  and  a  sub- 

sequent attempt  to  do  so,  failed  to  show  that  defendant  took  any 
part  therein,  or  was  addressed  concerning  the  same,  or  assented 
thereto,  or  was  connected  with  the  alleged  attempt  to  rob,  held, 
that  an  instruction  submitting  to  the  jury  the  question  whether 
defendant  was  connected  with  such  attempt  was  erroneous  and 
prejudicial;  defendant  not  having  been  showu  to  be  a  party  to 
the  conspiracy,  evidence  of  attempts  to  carry  it  out  was  incom- 
petent. 

2.  Confessions  voluntarily   made   are  entitled   to  much   weight,   but 

when  obtained  through  flattery,  hope  or  fear  they  lose  their 
value.  Where  hired  detectives  persistently  take  the  defendant 
from  place  to  place,  and  represent  themselves  as  belonging  to  a 
band  of  outlaws,  and  induce  him,  in  order  to  demonstrate  his 
fitness  for  admission  to  their  band,  to  represent  himself  as  hav- 
ing committed  various  crimes,  and  among  others  the  one  for 
which  he  was  tried,  it  was  the  duty  of  the  trial  court  to  have 
pointed  out  to  the  jury  the  sinister  methods  and  circumstances 
that  detracted  from  the  value  of  such  confessions,  so  that  they 
might  be  judged  according  to  their  true  worth. 

3.  Defendants'  alleged  confessions  as  to  their  crimes  at  other  plaos 

and  times,  and  not  connected  with  the  offense  for  which  he  was 
tried,  were  inadmissible  in  this  case. 

4.  Practice — (o)  Objections  to  evidence  should  be  saved  by  exceptions. 

(6)  Defendant  closed  his  defense  with  the  understanding  that 
he  could  cf.ll  a  witness  on  the  following  day,  no  objection  being 
then  made.  Next  day  objection  was  made  that  the  boy  produced 
was  only  thirteen  years  of  age,  and  that  no  showin'  had  been 
made  for  calling  him  out  of  order,  and  he  was  excluded.  While 
ordinarily  this  is  a  matter  of  discretion,  this  ruling  was  error. 


id 


m 


t  III 


202  AMERICAN  CRIMINAL  REPORTS. 

The  age  of  the  witness,  of  Itself,  was  not  objectionable;  and  by 
not  objecting  when  the  request  was  made,  the  Commonwealth 
had  waived  its  right  of  objection  on  the  second  ground;  and  the 
facts  to  be  proved  by  the  witness  were  apparently  of  vital  interest 
to  the  defendant. 

Frank  Wilson,  convicted  of  murder  in  the  coxirt  of  O.  &  T. 
Blair  County,  appeals.    Keversed. 

E.  A.  Henderson,  for  the  appellant. 

William  S.  Hammond,  District  Attorney,  for  the  Common- 
■\vealth. 

WiixiA^rs,  J.  The  defendant  Frank  Wilson  was  indicted 
jointly  with  James  Farrcll  and  William  Doran  for  the  murder 
of  Henry  Eonnecke.  lie  was  separately  tried,  and  convicted  of 
murder  of  the  first  degree.  A  new  trial  was  then  applied  for, 
which  the  court  helow  refused,  and  the  defendant  has  removed 
the  record  of  his  trial  and  conviction  into  this  court  by  appeal. 
Twenty-four  errors  are  assigned  to  the  rulings  of  the  learned 
judge  upon  the  trial,  but  the  questions  raised  by  them  are  re- 
ducible to  six.  The  first  of  these  is  raised  by  the  assignments 
which  relate  to  the  admission  of  the  testimony  of  Joseph  Peddi- 
cord,  the  subsequent  refusal  to  strike  it  out  or  withdraw  it  from 
the  jury,  and  the  treatment  of  this  testimony  by  the  learned 
judge  in  his  charge  to  the  jury. 

AVhcn  Peddicord  was  called  to  the  witness  stand,  the  defend- 
ant's counsel  asked  for  an  offer  showing  what  it  was  proposed  to 
prove  by  him.  An  offer  was  then  submitted  as  follows :  "The 
prosecution  proposes  to  prove  by  the  witness  that  Frank  W^ilson, 
the  defendant  on  trial,  and  James  Farrell  and  W^illiam  Doran, 
Avho  are  jointly  indicted  and  Joseph  Peddicord,  the  witness, 
did  in  1S94,  and  at  divers  times  prior  to  the  time  of  the  mur- 
der of  Henry  Eonnecke,  plan,  conspire,  and  agree,  together  and 
among  themselves,  to  rob  Henry  Eonnecke;  and,  in  piirsuance 
of  said  conspiracy,  James  Farrell  and  Joseph  Peddicord  made 
an  assault  with  intent  to  rob  the  said  Henry  Eonnecke  on  Feb- 
ruary 21,  1895 ;  and  that  immediately  after  this  attempt  James 
Farrell  declared  he  would  have  the  old  man's  money  if  he  had 
to  kill  him."  So  much  of  this  offer  as  related  to  the  conspiracy 
by  the  defendant,  with  others,  to  rob  Eonnecke,  and  to  what  had 


[ 

ill 

COMMONWEALTH  v.  WILSON. 


203 


Icon  (lone  in  pursuance  of  this  conspiracy  by  two  of  the  con- 
spirators, was,  we  think,  comiietcnt,  upon  its  face.  The  theory 
of  tlie  Commonwealth  was  that  the  murder  had  been  conuuitted 
for  the  purpose  of  enabling  the  murderers  to  rob  the  old  man 
without  outcry  or  resistance  on  his  part,  and  the  fact  that  the 
defendant  was  one  of  four  con8i)irators  who  had  agreed  upon  a 
plan  to  rob  him  but  a  few  months  before  tlie  robbery  and  nmr- 
dor  occurred  was  certflinly  a  relevant  and  an  important  circum- 
stance for  the  prosecution.  But,  when  the  evidence  under  this 
oflFcr  was  all  in,  it  did  not  sustain  the  offer.  The  witness  testi- 
fied that  Wilson  was  present  when  the  other  persons  named  in 
the  offer  talked  over  the  subject  of  Bonnecke's  ha^'ing  money, 
and  how  it  could  be  gotten,  but  that  he  took  no  part  in  the  con- 
versation. No  part  of  it  wos  addressed  to  him,  and  no  response 
or  assent  of  any  sort  was  made  by  him.  This  did  not  show  a 
conspiracy  to  wliich  he  was  a  party.  Two  of  the  actual  con- 
spirators did  afterwards  make  an  ineffectual  attempt  to  rob 
Bonnecke,  but  Wilson  was  not  with  them,  nor  does  it  appear 
that  he  knew  the  attempt  was  to  be  made.  The  only  sjiark  of 
evidence  to  connect  Wilson  with  the  conspiracy  or  the  attempted 
robbery  is  the  fact  that  he  probably  overheard  some  part  of  the 
conversation  between  Peddicord,  Farrell,  and  Doran  relating 
to  Bonnecke  and  his  money.  If  the  offer  had  proposed  just 
what  the  testimony  admitted  under  it  established,  viz.  that  Wil- 
son had  overheard  a  conversation  between  some  of  his  acquaint- 
ances showing  their  purpose  to  rob  Bonnecke  if  they  could,  wo 
have  no  doubt  that  it  would  have  been  promptly  rejected.  AVhen 
the  effort  to  prove  a  conspiracy  to  which  W^ilson  was  a  party 
failed,  the  proof  of  what  was  alleged  to  have  been  done  under 
the  conspiracy,  and  in  pursuance  of  it,  became  incompetent. 
The  only  thing  to  connect  the  defendant  with  the  attempt  of 
Peddicord  and  Farrell  to  rob  Bonnecke  was  the  alleged  con- 
spiracy, and,  this  failing,  there  was  no  more  reason  why  the  de- 
fendant should  be  affected  by  their  crime  than  by  the  crimes  of 
any  other  persons.  For  this  reason,  we  think,  the  evidence, 
having  failed  to  sustain  the  offer,  should  have  been  withdrawn 
as  the  defendant's  counsel  asked.  But  that  of  which  the  defend- 
ant has  a  right  to  complain  more  serioiisly  is  the  use  made  of 
the  testimony  of  Peddicord  by  the  learned  judge  in  his  charge. 


'I! 
ii 


m 

m 


264 


AMERICAN  CRIMINAL  REPORTS. 


IIo  snitl:  **To  connect  the  defomlant  with  the  killing,  the  Coni- 
monwoalth  shows  by  Joseph  Peddicord  that  some  time  prior  to 
April,  1895,  ...  he  was  in  company  with  William  Doran, 
James  Farrell,  and  the  defendant,  on  the  hill  west  of  Altoona ; 
that  they  had  some  conversation  about  Bonnecke's  siipposcd 
money,  which  he  was,  miser-like,  lioarding,  and  as  to  the  meth- 
ods by  which  he  could  be  robbed.  But  Peddicord  says  that  Wil- 
son took  no  part  in  the  conversation,  although  he  was  present." 
The  learned  judge  then  added:  '*Doran  and  Farrell  are  jointly 
indicted  with  Wilson,  the  present  defendant,  but  are  ni  t  oii 
trial;  Doran  not  having  been  taken,  and  Farrell  being  now  in 
jail.  It  is  further  shown  that  on  the  evening  of  Febr\iarv  21, 
1895,  about  dusk,  Farrell  and  Peddicord  did  attempt  to  rob 
Bonnecke,  but  failed.  .  .  .  The  Commonwealth  argues  that 
Farrell  and  some  other  persons,  one  of  whom  was  the  dofcndant, 
again  attempted  to  rob  Bonnecke,  and  did  rob  and  kill  him,  on 
the  night  of  April  G  and  7,  1S95."  This  gave  the  Common- 
wealth the  full  benefit  of  the  offer,  rather  tlian  the  fair  effect  of 
what  was  actually  proved  under  it,  and  is,  we  think,  a  substan- 
tial ground  for  complaint. 

The  next  question  is  raised  by  the  assignments  numbers  seven 
to  ten,  inclusive,  and  relates  to  the  admissibility  of  the  so-called 
confessions  made  to,  and  shown  by,  the  professional  detectives 
who  were  employed  to  ferret  out  the  murderers  of  Bonnecke  by 
the  officers  of  Blair  county.  Soon  after  the  coroner's  inquest 
was  held  upon  the  body  of  the  murdered  man,  the  county  com- 
missioners of  that  county  employed  a  detective  agency  to  work 
upon  the  case,  and  to  find  out,  if  possible,  who  were  the  mur- 
derers, and  bring  them  to  trial  for  their  crime.  This  was  a 
proper  thing  to  do.  The  detectives  entered  upon  their  work  at 
once.  Suspicion  was  directed  towards  Wilson,  among  others, 
but  there  were  no  such  incriminating  circumstances  known  as 
would  justify  his  arrest  and  trial.  A  plan,  somewhat  elaborate 
and  skillful  in  outline,  was  adopted  to  obtain  such  declarations 
from  him  as  would  make  his  trial  and  conviction  possible.  It 
was  put  into  execution  with  vigor,  and  without  any  regard  to 
truth,  or  the  unconscionable  means  required.  The  defendant 
was  led  to  believe  that  the  detectives  about  him  wore  the  mem- 
bers of  a  band  of  outlaws  engaged  in  the  commission  of  great 


COMMONWEALTH  v.  WILSON. 


205 


crimes,  inchuling  the  burglary  of  banks  and  the  plunder  of  rail- 
road trains,  from  which  large  sums  of  uionoy  wore  realized  by 
them,  and  that  be  could  secure  admission  if  his  record  as  a  crim- 
inal was  such  as  to  give  assurance  of  his  courage  and  hardiliDod. 
lie  became  an  applicant  for  admission  to  this  band,  and  the  so- 
called  confessions  are  the  statements  made  by  him  to  the  persons 
■whom  he  understood  to  bo  prominent  in  the  organization,  and  in 
a  position  to  obtain  his  admission  as  a  member.  He  alh^god 
that  he  had  been  connected  with  robberies,  burglaries,  and  hir- 
cenies  in  Pennsylvania  and  Ohio,  and  that  he  was  one  of  the 
persons  who  had  killed  and  robbed  Bonnecke.  K^ow,  wo  arc  of 
opinion  that  so  much  of  these  stories  of  his  own  crimes  as  re- 
lated to  the  killing  of  Bonnecke  was  admissible,  not  as  a  con- 
fession, in  the  ordinary  sense  of  that  word,  but  as  a  statement 
made  by  him  relating  to  that  subject,  the  value  of  which  was 
for  the  jury  to  determine.  It  was  made  for  a  definite  piirpose, 
which  he  was  anxious  to  accomplish,  viz.  to  satisfy  the  lupposed 
criminals  by  whom  ho  was  surrounded  that  be  was  capable  of 
crimes  as  great,  and  possessed  of  a  record  as  black,  as  they,  and 
that  he  could  be  trusted  implicitly  to  keep  their  counsels,  and  to 
assist  in  their  lawbreaking  schemes.  There  was  a  temptation,  in 
the  circumstances  under  which  he  was  acting,  to  represent  him- 
self to  be,  if  possible,  worse  than  he  really  was.  His  attention 
was  on  an  ulterior  objoct.  Confession,  for  the  purposes  of  con- 
fession, was  the  furthest  possible  from  his  thought.  Still  what 
he  said  was  admissible  in  evidence  against  him.  It  should  go 
to  the  jury,  however,  for  no  more  than  it  is  worth.  A  confession 
voluntarily  made  is  entitled,  ordinarily,  to  great  weight.  If  it 
is,  in  the  language  of  'Mr.  Greenleaf,  "forced  from  the  mind  by 
the  flattery  of  hope  or  the  torture  of  fea;  "  induced  by  repre- 
sentation made  to  the  accused,  its  value  is  lost.  It  shotild  be 
excluded  altogether.  If  it  is  induced  by  what  may  be  called 
"collateral  inducements,"  it  occupies  a  kind  of  intermediate  po- 
sition. Such  inducements  are  to  be  consiuered  as  affecting,  not 
the  admissibility  of  the  statements  made  by  the  prisoner  against 
himself,  but  their  credibility.  They  should  go  to  the  jury  with 
the  inducements  that  led  to  them,  in  order  that  the  jury  may  see 
how.  they  came  to  be  made,  and  the  motive  that  operated  on  the 
prisoner's  mind  when  they  were  made.     The  jury  can  then* 


if 


I  '  I'l 


1      '  hri 


ps^T 


260 


AMERICAN  CRIMINAL  REPORTS. 


■J  1 1 


I 


judge  of  their  value,  and  determine  the  weight  to  which  thoy 
are  entitled. 

The  learned  trial  judge  seems  to  have  followed,  in  part,  tho 
rule  we  have  indicated,  and  to  have  sent  all  the  circumstanees 
and  inducements  leading  to  the  so-called  confessions  vo  tho  jury. 
The  only  just  ground  of  complaint  is  that  the  attention  of  the 
jury  was  not  called  distinctly  to  this  suhjcct  in  the  general 
charge,  and  the  situation  and  value  of  statements  like  those 
testified  to  hy  the  detectives  pointed  out.  This  duty  of  tho 
judge  under  such  circumstances  is  commented  on  in  Slate  r. 
^Ycn(worth,  37  N.  II.  218,  where  the  collateral  inducement  was 
the  desire  to  obtain  a  reward  that  had  been  offered ;  in  a  Vir- 
ginia case  (14  Gratt.  052),  where  it  was  the  ho]x?  of  the  prisoner 
to  benefit  his  mother  by  his  confession ;  in  People  v.  SmaUlug, 
94  Cal.  112,  2!>  Pac.  Kep.  121,  when  it  was  to  aid  his  sister;  in 
State  V.  Gmnt,  22  ^le.  171,  where  it  was  to  save  a  brother.  Jn 
all  these  cases  the  confessions  were  a<lmitted,  but  the  collateral 
inducements  under  the  influence  of  which  they  were  made  went 
with  them,  to  enable  the  jury  to  determine  the  degree  of  reli- 
ance to  be  put  upon  them.  iJut  AVilsou's  statements  in  regard  to 
crimes  committed  at  other  times,  at  other  places,  and  upon  other 
persons,  having  not  the  least  connection  with  the  lulling  of 
Bonnecke,  were  not  admissible  against  the  defendant  in  this 
case.  They  served  to  blacken  his  character,  to  arouse  indigna- 
tion against  him  in  the  minds  of  the  jurors,  and  to  show  him  to 
be  a  monstrous  criminal,  who  was  capable  of  any  crime  in  tho 
calendar,  but  they  threw  no  liglit  on  the  question  the  jury  had 
to  determine.  If  a  conviction  upon  general  ])rinciples  could  be 
defended,  then  possibly  all  this  evidence  relating  to  other  crimes 
would  be  proper,  but  upon  a  trial  for  a  S])eciilc  crime  the  evi- 
dence should  bear  some  relation  to  the  question  of  the  defend- 
ant's connection  with  the  particular  crime  charged.  Proof  of 
other  crimes  may  sometimes  become  competent  for  a  particular 
purpose,  as  in  Commonwealth  v.  FerrUjan,  44  Pa.  .3S0,  where 
the  purpose  was  to  show  the  quo  auimo  of  defendant,  and  mo- 
tive; or  in  Goersen  v.  Commonwealth,  09  Pa.  388,  to  establish 
identity,  deliberation,  or  guilty  knowledge;  or  where  the  two 
offenses  are  connected  in  character  and  purpose,  as  in  Kramer 
V.  Commonwealth,  87  Pa.  299 ;  but  the  general  rule,  as  we  have 


ill 


COMMONWEALTH  v.  WILSON. 


267 


stiitoil  it  above,  is  recogni/ed  in  all  these  cases,  and  in  the  text- 
ImmiIvS.  Many  cases  in  8uj)port  of  it  are  cited  in  0  Am.  &  Eng. 
Kncy.  f»f  Law  (2d  ed.),  p.  533. 

In  this  connection  the  question  raised  by  the  fourteenth,  fif- 
t('(  nth,  sixteenth,  and  seventeenth  assignments  will  be  most  con- 
veniently considered.  These  assignments  all  relate  to  the  ad- 
mission of  the  testimony  of  witnesses  called  to  prow  an  attempt 
by  the  defendant  to  rob  one  P.  A.  Schwab,  a  resident  of  Al- 
toona,  on  April  27,  1805.  This  occurred  some  three  weeks  after 
Ijonneeke  was  killed,  and  had  not  the  slightei-i  connection  willi 
that  ciiiii(\  If  it  had  been  offered  as  part  of  the  cii^'e  of  the 
("onunon wealth  against  the  defendant  at  the  trial,  it  wuuld  have 
liocn  rejected,  as  a  nmtter  of  course;  but  the  defendant,  when  on 
the  stand  in  his  own  behalf,  had  denied  any  connection  with  the 
attempt  to  rob  Schwab,  and  this  evidence  was  offered  with  a 
view  to  contradict  him,  and  so  affect  his  credibility  as  a  witnc'^s. 
It  was  probably  competent  for  that  purpose,  unless  the  answer 
<ii'  the  defendant  was  made  upon  cross-examination,  under  such 
cin'unistances  as  to  make  his  answer  conclusive  upon  the  Com- 
mon wealth.  We  do  not  find  in  the  record  that  its  admission 
was  excepted  to,  and  its  admissibility  is  therefore  not  raised  in 
any  ])roper  way.  If  there  is  ground  of  complaint,  it  is  that  the 
jury  was  not  instructed  in  the  purpose  of  its  admission,  and  the 
crt'cct  to  be  given  to  it  by  them. 

Tlie  twelfth  and  thirteenth  assignments  uuiy  also  be  consid- 
ered together.  It  a])i)ears  that,  when  the  defendant  was  about 
to  close  his  ease  in  chief,  his  counsel  called  the  attention  of  the 
cdurt  to  the  fact  that  one  witness  whom  they  desired  to  examine 
was  not  ])resent,  and  asked  to  have  the  privilege  of  calling  him 
out  of  ])lace  on  the  following  day.  With  this  understanding,  to 
wliieh  no  objection  was  made,  the  defendant  rested.  On  the 
next  day  the  witness,  a  lad  under  thirteen  years  of  age,  came 
into  court  with  his  mother.  He  was  called  to  the  stand,  and 
the  subject  to  which  his  attention  was  to  be  called  was  stated. 
Thereupon  the  counsel  for  the  Commonwealth  objected  to  his 
examination,  for  these  reasons :  First,  because  of  his  age ;  next, 
because  the  subject  to  whicli  it  was  proposed  to  call  the  attention 
of  the  witness  had  not  been  stated  when  the  right  to  call  him  had 
been  reserved  on  the  previotis  day;  and,  last,  because  the  evi- 


'■'  m 


f,i^f^ 


263 


AMERICAN  CRIMINAL  REPORTS 


m 


ir- 


w'ij 


\^l 


Ijfi-'s 


i 


denco  was  not  properly  in  surrebnttal.  These  objections  were 
sustainetl,  and  the  witness  exclnded.  We  think  this  was  error. 
The  witness  was  not  incompetent  because  of  his  age.  If  it  was 
alleged  that  he  was  unacquainted  with  the  nature  of  an  oath,  ho 
should  have  been  examined  upon  that  subject,  and,  if  necessary, 
instructed  in  the  presence  of  the  court.  He  alleged  that  he  was 
fully  aware  of  the  nature  and  importance  of  an  oath.  He  was 
the  son  of  a  local  magistrate,  and  had  some  familiarity  with  the 
proceedings  in  his  fathoi's  court.  Ilis  knowledge  should  have 
been  tested  before  his  rejection  upon  this  ground.  The  second 
ground  of  exclusion  was  not  sufficient.  If  the  Commonwealth 
or  the  court  had  asked,  before  consenting  to  call  the  witness  out 
of  order,  for  what  purpose  the  testimony  of  the  witness  was 
wanted,  it  would  have  been  the  duty  of  the  defendant's  counsel 
to  state  fairly  just  what  it  was.  But,  failing  to  do  this,  the 
consent  of  the  court  was  given  to  call  him  out  of  order,  and  with 
that  understanding  the  defendant  rested  his  case.  The  calling 
of  him  when  he  came  in  was  a  return  to  the  case  in  chief  of  the 
defendant,  and  if  his  testimony  would  have  been  competent 
when  he  was  first  called  and  found  not  to  be  in  the  court  room, 
it  was  competent  when  he  was  actually  called  on  the  following 
day.  This  disposes,  also,  of  the  third  and  last  objection,  that 
the  evidence  was  out  of  order  when  it  was  proposed  to  give  it. 
It  would  have  been  out  of  order,  but  for  the  reservation  of  the 
right  to  call  him  when  he  came  in,  made  and  assented  to  before 
the  defendant  closed  his  case  in  chief.  The  fact  which  the  wit- 
ness was  expected  to  testify  to  was  one  which,  if  the  jury  had 
believed  his  story,  would  have  made  the  conviction  of  the  de- 
fendant impossible.  It  was  that  he  had  called  at  Bonnoeke's 
house,  at  the  direction  of  his  mother,  in  the  morning  of  Satur- 
day, the  6th  of  April,  1895,  knocked  at  his  door,  and  tried  to 
obtain  admission,  without  success.  He  had  also  climbed  on  the 
railing  at  the  side  of  the  porch,  and  looked  into  the  room  through 
the  window,  but  could  see  only  a  heap  near  the  door,  covered 
with  blankets,  and  an  empty  boot  lying  near  it.  What  was 
under  the  blankets,  he  could  not  tell.  When  the  officers  effected 
an  entrance  into  Bonnecke's  house  on  Simday,  at  noon,  they 
found  a  heap  near  the  door,  covered  with  blankets,  and  an  empty 
boot  near  it.     On  removing  the  blankets  the  body  of  the  mur- 


COMMONWEALTH  v.  WILSON. 


20S) 


re 
)r. 

!1S 
llG 


le 


(IcreJ  man  was  found  under  them,  with  one  boot  on,  and  the 
other  lying  empty  on  the  floor  close  by,  but  not  covered  by  the 
blankets. 

The  effect  of  the  testimony  of  Smith  was  to  fix  the  murc^or  at 
an  hour  prior  to  his  visit  to  the  house  on  Saturday  morning. 
Wilson  Avas  then  in  the  county  jail  at  Ilollidaysburg,  and  had 
been  for  some  weeks.  Ilia  release  did  not  occur  until  between 
two  and  four  o'clock  in  the  afternoon  of  Saturday.  The  rejec- 
tiiin  of  the  testimony  of  his  mother,  who  was  called  at  the  same 
time,  is  the  subject  of  the  thirteenth  assignment.  She  was  called 
out  of  order.  The  right  to  call  her  had  not  been  reserved.  It 
would  not  have  been  error  in  the  learned  judge  if  he  had  dis- 
regarded the  question  of  order  and  admitted  the  witness,  nor 
can  we  say  it  was  error  to  sustain  the  objection  and  reject  her. 
Questions  relating  to  the  order  of  the  testimony  alone  are  quite 
largely,  in  such  cases,  under  the  sound  discretion  of  the  trial 
judge. 

The  remaining  questions  relate  to  the  adequacy  and  fairness 
of  the  charge  of  the  learned  judge,  and  are  raised  by  the  nine- 
teenth, twenty-first,  and  twenty-second  assignments  of  error. 
They  complain  that  undue  prominence  was  given  to  the  testi- 
mony of  some  of  the  witnesses  for  the  Commonwealth ;  that  the 
theory  of  the  defense  was  misunderstood,  and  therefore  inaccu- 
rately stated  to  the  jury;  and  that  the  circumstances  calculated 
to  weaken  the  force  of  the  testimony  of  the  detectives  were  over- 
looked or  greatly  minimized.  These  objections  require  us  to 
look  in  a  general  way,  and  very  briefly,  at  the  case  presented  at 
tlie  trial.  Bonnecke  was  an  old  man,  unable  to  work,  and  quite 
infirm.  There  were  rumors  that  he  had  a  little  money  laid 
away,  that  he  was  hoarding,  but  there  were  no  indications  of  it 
in  his  humble  cabin,  or  in  his  own  appearance.  He  lived  alone, 
in  a  little  house  containing  but  one  room.  His  furniture  was 
very  poor  and  very  scanty.  His  food  was  simple,  and  was 
mainly  supplied  by  the  charity  of  his  neighbors.  lie  was  timid, 
avoided  people  generaU",  vas  seen  but  little  on  the  streets,  and 
usually,  when  in  the  house,  had  the  doors  securely  locked.  ^lost 
of  his  neighbors  say  that  he  was  not  seen  by  them,  nor  Avas  light 
observed  in  his  windows,  nor  smoke  rising  from  his  chimney, 
after  Thursday  night.    Some  thought  they  saw  him  on  Friday. 


'i 


270 


AMERICAN  CRIMINAL  REPORTS. 


wn 


^^i^i ' 


Some  others  are  of  opinion  that  they  saw  him  on  Saturday,  but 
on  neither  of  these  daj's  did  any  of  those  who  supplied  the  oM 
hermit  Avith  food  succeed  in  getting  into  his  house,  or  getting 
any  response  to  their  knocks  on  his  door,  or  other  efforts  to  at- 
tract his  attention.     His  liouse  was  finally  entered  on  Sunday, 
as  we  have  already  stated,  about  the  middle  of  the  day.     He 
was  found  on  the  floor  dead.     Ilis  body  was  covered  with  the 
old  blankets  he  had  used  as  covering  upon  his  rude  bed.    His 
bed  had  been  torn  open,  and  presented  the  appearance  of  having 
contained,  in  the  middle  of  the  straw,  some  small,  round  object, 
which  had  been  removed.     His  boxes  had  been  searched,  and 
their  contents  left  in  a  state  of  confusion.     The  body  did  not 
appear  to  have  been  affected  by  the  rigoi-  mortis  at  the  time  it 
was  found,  and  there  was  a  little  pool  of  blood  on  the  floor,  near 
his  head,  which  was  not  examined,  but  which  the  witnesses  said 
did  not  appear  to  have  coagulated.     A  handkerchief  had  been 
drawn  through  his  mouth  so  tightly,  and  tied  so  securely  behind 
his  head,  that  the  coroner  thought  he  would  have  died  from 
strangulation  alone,  but  he  had  received  a  blow  upon  the  head 
that  had  broken  his  skull  vertically  from  its  top  to  the  base. 
Very  soon  after  the  discovery  of  this  brutal  murder,  the  ofiicers 
of  the  county  determined  to  unravel  the  mystery  that  surrounded 
it,  if  possible,  and  bring  the  perpetrators  to  punishment.     For 
this  purpose  the  detective  agency  of  Barring  &  McSweeny  was 
applied  to,  and  they  detailed  men  for  the  purpose  of  working 
upon  the  cnse,  and  discovering  the  guilty  parties,  if  possible. 
The  detectives  caused  the  arrest  of  Wilson,  and  secured,  by 
means  already  alluded  to,  the  statements  or  confessions,  as  they 
are  called,  without  which  no  conviction  could  have  been  had  on 
the  evidence  that  was  given  at  the  trial.    !Mo8t  of  the  important 
evidence  for  the  Commonwealth  was  furnished  by  the  detectives. 
They  and  their  methods  were  bitterly  assailed  by  defendant's 
counsel.    The  case  was  exceptional,  for  several  reasons,  and  the 
duty  of  holding  the  judicial  scales  evenly  was  by  no  means  easy 
of  performance.    But,  when  the  charge  of  the  learned  judge  is 
considered  as  a  whole,  we  do  not  find  in  it  any  inadequacy,  ex- 
cept as  we  have  ah'eady  pointed  out,  nor  do  we  find  any  indica- 
tion whatever  of  either  prejudice  or  partiality.     It  is  true,  he 
did  not  share  the  bitterness  of  the  defendant  and  his  counsel  to- 


COMMONWEALTH  v.  GOODWIN. 


271 


■wards  the  work  of  the  detectives,  or  towards  their  testimony, 
but  he  left  their  credibility  to  the  jury.  The  charge  may  be 
justly  criticised  to  some  extent  for  its  want  of  fullness  in  its 
treatment  of  some  of  the  subjects  to  which  the  assignrnents 
under  consideration  relate,  but  nowhere  does  it  seem  wanting  in 
fairness;  nor  does  it  fail  to  bring  to  the  notice  of  the  jury  the 
main  questions  upon  wlxjch  they  were  to  pass.  The  objections 
to  the  charge,  therefore,  which  assert  partiality  and  prejudice, 
are  dismissed  without  further  discussion.  The  assignments  of 
error  which  we  have  sustained,  however,  require  us  to  reverse 
tliis  judgment,  and  send  the  case  back  to  the  court  below  for  au- 
otlier  trial.  The  verdict  may  be  right,  in  finding  the  defendant 
guilt}'^  of  the  murder  of  Henry  Bonnecke.  "We  express  no  opin- 
ion upon  that  question.  But  if  the  jury  was  influenced,  or 
might  naturally  have  been  influenced,  by  irrelevant  considera- 
tions, or  by  the  absence  of  evidence  that  was  competent  and 
relevant,  the  verdict  rendered  bv  them  under  such  circumstances 
ought  not  to  stand.  It  is  for  this  reason  that  the  judgment  ap- 
pealed from  is  now  reversed  and  aet  aside,  and  a  writ  of  venire 
facias  de  novo  is  awarded. 


m 


Commonwealth  v.  Goodwikt. 


186  Pa.  St.  218—40  Atl.  Rep.  412;   65  Am.  St.  Rep.  852. 

Confessions:  Obtained  by  artifice. 

Decided  May  16,  1898. 

1.  A  confession  obtained  by  artifice,  but  without  suggestions  of  favor 

or  danger,  is  admissible  in  evidence. 

2.  A  letter  written  by  the  prisoner  while  in  Jail  and  kept  by  the  Jailer 

is  admissible  in  evidence. 

Appeal  from  the  Court  of  Oyer  and  Terminer  of  Tioga 
County. 

Walter  E.  Goodwin,  being  convicted  of  murder,  appeals.  Af- 
firmed. 

At  the  prisoner's  request,  and  apparently  as  a  favor  to  the 
prisoner,  the  sheriff  permitted  the  prisoner  to  go  to  the  cell  of 


s-i 


V  J 

:4 


272 


AMERICAN  CRIMINAL  REPORTa 


Gertrude  Taylor,  wlio  was  in  jail  charged  with  the  same  crime. 
Before  admitting  him  to  the  cell  the  slieriff  walked  him  aroinid 
the  corridor  to  show  him  that  no  one  else  was  near;  but  the 
sheriff  had  placed  deputies  over  Taylor's  cell  to  hear  the  con- 
versation, evidence  of  which  was  afterwards  admitted  at  the 
trial.  After  the  interview  in  the  cell  the  defendant  wrote  a 
letter  to  Taylor,  and  gave  it  to  the  shoj'iff,  who  promised  to  do- 
liver  it,  but  which  he  retained;  which  letter  was  also  admitted 
in  evidence. 


David  Cameron  and  Jerome  B.  Nilcs,  for  the  appellant. 
Andrew  B.  Dunsmore,  Dist.  Atty.,  and  Meirick  tC  Young, 
for  the  Commonwealth. 


Mitchell,  J.  The  assignments  of  error  are  based  on  the  re- 
fusal to  strike  out  the  testimony  of  Gertrxide  Taylor  and  of  the 
two  deputy  sheriffs  as  to  what  the  prisoner  said  in  the  interview 
with  the  girl,  and  on  the  admission  of  the  prisoner's  letter  to 
her.  The  only  objection  is  that  the  Commonwealth  obtained  the 
evidence  by  an  artifice  which  the  prisoner  did  not  anticipate  or 
suspect.  There  is  nothing  substantial  in  this  argument  The 
means  by  which  the  Commonwealth  obtains  its  evidence  must 
vary  with  the  circumstances  of  each  case.  In  dealing  with 
crime,  nicety  of  method  and  considerations  of  delicacy  must 
often  give  way  to  necessity.  If  the  rule  were  otherwise,  the  testi- 
mony of  accomplices,  and  even  of  detectives,  would  seldom  be  ad- 
missible, and  crime,  which  works  in  the  dark,  would  go  unpun- 
ished. The  conversation  between  the  prisoner  and  Gertrude 
Taylor  was  of  an  incriminating  character,  amounting  practically 
to  a  confession,  and  we  may  concede  that  its  admissibility  is  to 
be  determined  by  the  same  rule.  If  it  had  been  accidentally 
overheard,  or  his  letter  had  been  carelessly  dropped  by  her,  and 
found  by  the  sheriff,  there  could  have  been  no  objection  to  the 
use  of  them  by  the  Commonwealth.  But  there  is  nothing  in  the 
circumstances  to  produce  a  different  result.  The  prisoner  has 
no  light  to  object  unless  the  evidence  was  cajoled  or  forced 
from  him  by  inducements  or  threats  from  those  whose  authority 
.over  him  would  make  their  promises  or  threats  equivalent  to 
duress.    There  was  no  such  element  here.    Both  the  interview 


COMMONWEALTH  v.  GOODWIN. 


273 


and  the  letter  were  the  prisoner's  voluntary  act,  on  his  own  ini- 
tiative, and  for  his  own  purpose.  Neither  his  hopes  nor  his 
fears  were  raised  by  any  act  of  the  sheriff.  In  Com.  v.  Smith, 
119  Mass.  305,  the  prisoner,  a  girl  of  fourteen,  made  a  confes- 
sion to  the  officers  who  had  her  in  custody.  The  judge  at  tho 
trial  ruled  that  ''mere  fear  on  the  part  of  the  defendant  did  not 
render  the  confession  incompetent  unless  induced  by  some  im- 
proper conduct  on  the  part  of  tlie  officers,"  and  this  was  affirmed, 
the  court  saying,  "To  avoid  the  effect  of  this  confession,  the 
hope  or  fear  which  led  the  defendant  to  confess  facts  unfavor- 
able to  her,  must  be  induced  by  the  threats,  promises,  or  conduct 
of  the  officers."  And  in  ^Miarton  on  Criminal  Evidence,  sec. 
044,  it  is  said,  citing  cases,  "!N^or  is  it  fatal  to  the  admissibility 
of  such  a  letter  that  it  was  in  answer  to  a  letter  meant  as  a 
trap."  "Though  it  is  necessary  to  the  admissibility  of  a  con- 
fession that  it  should  have  been  voluntarily  made, — that  is, 
that  it  should  have  been  made  without  the  appliances  of  hope  or 
fear  from  persons  having  authority, — yet  it  is  not  necessary 
that  it  should  have  been  the  prisoner's  own  spontaneous  act.  It 
will  be  received,  though  it  were  induced  by  spiritual  exhorta- 
tions, whether  of  a  clergyman  or  of  any  other  person,  or  by  a 
solemn  promise  of  secrecy  even  confirmed  by  an  oath,  .  .  . 
or  by  any  deception  practiced  on  the  prisoner,  or  false  repre- 
sentation made  to  him  for  that  purpose,  provided  there  is  no 
reason  to  suppose  that  the  inducement  held  out  was  calculated 
to  produce  any  untrue  confession,  which  is  the  main  point  to 
be  considered."  1  Greenl.  Ev.,  par.  229.  "A  confession  pro- 
cured bv  artifice  is  not  for  that  reason  inadmissible  imless  the 
artifice  used  was  calculated  to  produce  an  untrue  confession." 
3  Am.  &  Eng.  Enc.  Law,  tit.  "Confessions,"  §  5.  The  subject 
Avas  very  carefully  considered  in  a  noted  case  somewhat  anal- 
ogous to  the  present, — Commonwealth  v.  Hanlon,  8  Phila.  423. 
The  prisoner  there,  being  charged  with  murder,  Avas  put  in  the 
same  cell  with  a  criminal  named  Dunn,  for  the  purpose  of  ob- 
taining, if  possible,  evidence  to  convict.  At  the  trial,  Dunn's 
testimony  as  to  a  confession  made  by  the  prisoner  was  admitted, 
and  upon  it  the  latter  was  convicted  and  executed.  The  trial 
was  presided  over  by  a  judge  of  great  experience  in  criminal 
cases,  the  late  Judge  Ludlow,  assisted  by  Judge  Brewster;  and 
VcL.  XI— 18 


^1 


P 


m 
m 


^rk 


2T4 


AMERICAN  CRIMINAL  REPORTS., 


in  tlio  former's  oi)inion  refusing  a  new  trial  ho  states  that  tho 
result  of  tlieir  examination  of  tlie  subject  was  concurred  in  by 
their  coUengnes  the  late  President  Judge  Allison,  and  Judge 
Paxson,  subsequently  chief  justice  of  this  court.  Tho  rule  us 
stated  by  these  authorities  is  far  stronger  than  is  required  to 
sustain  the  present  case.  In  regard  to  the  admission  of  the 
prisoner's  letter,  we  have  an  authority  directly  in  point  in  Ilex 
V.  Derrington,  2  C.  &  P.  418.  A  prisoner  gave  a  letter  to  a 
turnkey  under  promise  that  it  should  be  posted,  but  the  turnkey 
gave  it  to  the  prosecutor.  Baron  Garrow  held  that  it  was  ad- 
missible, saying  the  only  cases  where  what  a  prisoner  says  or 
writes  is  not  evidence  are :  First,  "where  he  is  induced  t  make 
any  confession  in  consequence  of  the  prosecutor,  etc.,  aolding 
out  any  threat  or  promise  to  induce  him  to  confess;  and,  sec- 
ondly, where  the  communication  is  privileged  as  being  made  to 
his  counsel  or  attorney."  By  tho  well-settled  rules,  therefore, 
the  evidence  was  properly  received.  Judgment  affirmed,  and 
record  remitted  for  purpose  of  execution. 

Notes  (by  J.  F.  G.). — The  general  conclusion  arrived  at  by  the  court 
was  correct,  that  the  conversation  was  with,  and  the  letter  addressed 
to,  one  in  whom  the  prisoner  reposed  confidence,  and  that  the  circum- 
stances indicated  voluntary  statements,  untainted  by  the  tricks  used 
by  the  officers  to  obtain  them;  but  the  court  in  saying,  "the  prisoner 
has  no  right  to  object  unless  the  evidence  was  cajoled  or  forced  from 
him  by  Inducements  or  threats  from  those  whose  authority  over  him 
would  make  their  promises  or  threats  equivalent  to  duress,"  went  ;ict 
only  beyond  the  limit  necessary  to  sustain  that  confession,  but  a':- 
nounced  a  doctrine  not  consistent  with  reason.  Confessions  Riadj 
under  suggestions  of  hope  or  threats  of  danger  are  rejected,  becau,'.<( 
under  such  circumstances  the  statements  may  be  adverse  to,  or  deviate 
from,  the  truth.  This  being  so,  it  should  make  no  difference  whether 
the  influence  was  exerted  by  friend  or  enemy,  officer  or  civilian,  prose- 
cutor or  stranger.  If  by  reason  of  promises  of  compensation  or  sug- 
gestions of  influence  to  be  used  in  the  prisoner's  favor,  by  one  who  is 
in  fact  guilty,  an  innocent  man  is  induced  to  confess;  or  if,  by  threats 
made  by  persons  not  connected  with  the  case,  a  prisoner  is  Induced  to 
believe  that  his  welfare  depends  upon  a  confession,  the  effect  is  the 
same  as  though  the  promise  or  threat  came  from  the  prosecutor,  or 
from  the  oificer  In  charge.  The  weight  of  authority  does  not  sustain 
the  proposition  that  the  promises  or  threats  should  be  "equivalent  to 
duress." 

For  further  review  of  this  subject,  see  the  cases  reported  in  this 
volume  and  the  notes  upon  the  subject  of  "Confessions." 


I 


m 


REGINA  V.  ROSE.  275 

Reoina  v.  Eose. 

18  Cox  Criminal  Cases,  717. 

Crown  Cases  Reserved. 

Before  Lord  Russell,  C.  J.,  Hawkins,  Mathew,  Lawrence  and  Wright,  JJ. 
Saturday,  February  5,  1898. 

CoNFESsioxs;   Involuntary — Inducemetits — Ball. 

1.  A  confession  made  in  consequence  of  an  inducement  lield  out  by  a 

person  in  autliority  is  not  admissible  in  evidence.  A  statement 
made  by  an  accused  person  after  lie  has  been  told  that  it  will  be 
better  for  him  to  speak  the  truth  cannot  be  admitted  as  evidence 
against  him. 

2.  It  is  the  duty  of   prosecuting  counsel  and  solicitors  having  the 

charge  of  prosecutions  to  satisfy  themselves,  before  putting  in 
evidence  a  confession,  that  it  was  not  made  under  such  circum- 
stances as  to  be  inadmissible. 

3.  Bail  is  not  to  be  withheld  unless  it  is  otherwise  impossible  to  in- 

sure the  prisoner's  attendance  at  the  trial. 

Case  stated  by  the  chairman  of  the  Xorfolk  Quarter  Sessions. 

The  prisoner  was  indicted  for  harceny  of  certain  corn,  chaif, 
sheep,  poultry,  and  grass  seeds,  the  property  of  his  master,  one 
Corney.  It  was  stated  in  the  case  that  Corney,  in  the  presence 
of  a  police  constable,  had  asked  the  prisoner  how  he  accounted 
for  the  number  of  the  sheep  on  the  farm  being  less  than  it 
should  be,  and  the  prisoner  then  admitted  that  he  had  sold  a 
lamb  and  an  ewe  to  certain  persons.  In  giving  his  evidence 
Corney  stated  that  the  prisoner,  after  making  the  statement  as 
to  the  sheep,  had,  in  answer  to  questions,  stated  that  he  liad  also 
disposed  of  certain  quantities  of  com  and  chaff.  On  cross-exam- 
ination the  prosecutor  admitted  that  he  might  have  said  to  the 
prisoner,  "You  had  better  tell  me  about  all  the  corn  that  is 
gone."  Robert  Corney,  a  nephew  of  the  prosecutor,  being 
called,  subsequently  stated  that  the  prosecutor  had  asked  the 
prisoner  to  speak  the  truth,  saying  that  "it  would  be  better" 
for  the  prisoner  to  do  so.  Counsel  for  the  prisoner  submitted 
that  these  statements  of  the  prisoner  as  to  the  corn  had  been 
made  on  his  inducement  to  confess,  and  were  therefore  not  ad- 
missible in  evidence  against  him,  but  the  court  allowed  the 
Avhole  case  to  go  to  the  jury,  who  convicted  the  prisoner  on  the 
whole  indictment. 


ml 


I 


fc 


•I:i 


f.  1:  f 


2T6 


AMERICAN  CRIMINAL  REPORTS. 


E.  E.  yVild,  for  the  prisonor.  The  prosecutor  indiieed  the 
prisoner  to  confess  by  felling  him  that  it  would  be  better  for 
him  to  speak  the  truth.  A  confession  made  in  conseqiience  of 
such  an  inducement  is  not  adniissible  evidence ;  the  jury  shoulil 
have  been  told  to  disregard  it,  or  evidence  of  the  confession  hav- 
ing been  given,  and  being  subsequently  found  to  be  inadmissible, 
the  jury  should  have  been  discharged,  and  the  case  tried  by  a 
fresh  jury.  Xeitlier  of  these  coiirses  having  been  adopted  the 
conviction  was  bad,  and  should  be  quashed. 

Lord  Russell,  C.  J.  In  my  opinion  this  convi'^tion  cannot 
be  allowed  to  stand.  The  prisoner,  who  had  been  employed  by 
a  farmer  in  a  more  or  less  confidential  capacity,  was  charged 
with  stealing  a  variety  of  articles  and  property  of  his  master, 
amongst  other  things  sheep  and  corn,  and  was  tried  at  the  Nor- 
folk Quarter  Sessions  in  January.  It  appears  that  the  prose- 
cutor, having  reason  to  suspect  that  some  of  his  property  had 
been  improperly  dealt  with,  spoke  to  the  prisoner,  who  then,  as 
to  some  of  the  articles,  confessed,  and  confessed  voluntarily, 
but,  after  making  this  confession,  he  was  pressed  to  make  a  full 
confession,  and  to  confess  to  having  taken  the  corn.  That  is 
clear  from  the  evidence  of  the  prosecutor's  nephew,  who  said 
that  his  uncle  had  asked  Rose  to  speak  the  truth,  telling  him 
that  it  would  be  better  for  him  if  he  did.  This  amounts  to  evi- 
dence that  the  confession  was  not  voluntary  within  the  mean- 
ing of  the  authorities.  A  qxiestion  of  some  delicacy  then  arises 
as  to  the  course  which  the  magistrates  ought  to  have  adopted. 
It  is  clear  that  the  evidence  ought  not  to  bo  admitted;  but 
ought  the  court  merely  to  tell  the  jury  to  disregard  it,  or  ought 
the  court  to  discharge  the  jury  and  try  the  case  again  ?  In  this 
case,  however,  the  whole  of  the  evidence  was  allowed  to  go  to 
the  jury,  who  found  a  general  verdict.  The  rule,  which  is  very 
old,  and  is  stated  just  as  clearly  in  the  old  as  in  the  modern  au- 
thorities, will  be  found  in  East's  Pleas  of  the  Crown,  vol.  2,  at 
p.  Co 7.  Lord  Campbell,  in  Reg.  v.  Baldry,  19  L.  T.  Rep. 
(0.  S.)  146,  21  L.  J.  1.30,  M.  C,  admitted  a  confession  made 
by  a  prisoner  after  he  had  been  cautioned  by  a  policeman,  be- 
cause, as  is  correctly  stated  in  the  head-note  to  the  case,  "the 
observation  of  the  policeman  did  not  amount  to  any  promise  or 


REGINA  V.  ROSE. 


277 


threat  to  indnco  tlie  pvisonor  to  confess  so  as  to  render  a  con- 
fession which  the  latter  made  after  it  admissible."  In  Rog.  i>. 
Jarvis,  17  L.  T.  Hep.  178;  L.  Rep.,  1  Cr.  Cas.  Res.  06;  10 
Cox  C.  C.  574,  the  prisoner's  master  said  to  him,  "You  are  in 
the  presence  of  two  officers  of  the  police,  and  I  should  advise 
you  that  to  any  question  that  may  be  put  to  you  you  will  answer 
truthfully,  so  that,  if  you  have  committed  a  fault,  you  may  not 
add  to  it  by  stating  what  is  untrue;"  whereupon  the  prisoner 
made  a  confession  which  the  court  held  to  be  admissible,  Wil- 
Ics,  J.,  saying  that  the  case  would  have  been  different  if  the 
master  had  said,  "It  is  better  for  you  to  tell  the  truth."  The 
principle  is  also  laid  down  by  Cave,  J.,  in  Beg.  v.  ThompsoH, 
09  L.  T.  Rep.  24;  (1893)  2  Q.  B.  12 ;  17  Cox  C.  C,  at  p.  G45, 
with  the  concurrence  of  the  late  Lord  Chief  Justice,  that  a  con- 
fession is  not  admissible  if  it  is  preceded  by  an  inducement 
held  out  by  a  person  in  authority.  Seeing,  then,  that  in  the 
case  before  us  there  was  used  the  very  words  which  it  has  been 
held  render  a  confession  inadmissible,  in  my  opinion  this  con- 
fession was  not'  admissible,  and  that  it  having  been  admitted 
the  conviction  which  followed  it  was  bad.  It  is  to  be  borne  in 
mind  not  only  by  magistrates  but  by  prosecuting  counsel  and  by 
solicitors  having  the  charge  of  prosecutions,  that  they  must  sat- 
isfy themselves  before  putting  a  confession  in  evidence  that  the 
confession  was  not  obtained  under  such  circumstances  as  to  be 
inadmissible.  I  observe  that  in  this  case  bail  was  refiised  for 
the  prisoner.  It  cannot  be  too  strongly  impressed  on  the  mag- 
istracy of  the  country  that  bail  is  not  to  be  withheld  as  a  punish- 
ment, but  that  the  requirements  as  to  bail  are  merely  to  secure 
the  attendance  of  the  prisoner  at  the  trial. 


If 


Hawkins,   Matiiew,  Lawrence,   and  Weight,   JJ.,  con- 
curred. 


Solicitor,  IF.  A.  Watts,  St.  Ives,  Hunts. 
The  Crown  did  not  appear. 

Notes  (by  J.  F.  G.). — The  case  of  Regina  v.  Thompson,  cited  by  the 
Lord  Chief  Justice  in  the  above  opinion,  is  the  same  as  Queen  v. 
Thompson,  9  Am.  Grim.  Rep.  269.  The  decision  was  announced  by 
Lord  Chief  Justice  Coleridge  as  follows:  "In  this  case  we  are  all  agreed 
that  the  conviction  cannot  be  supported,  and  my  brother  Cave  has 


278 


AMERICAN  CRIMINAL  REPORTa 


Mil 


•written  a  judgment  which  we  have  all  read,  and  icith  which  tie  alt 
agree."  The  opinion  Is  one  of  exceptional  merit,  and  although  It  ap- 
pears in  full  in  a  previous  volume  of  these  Reports,  we  do  not  deem 
it  a  trespass  upon  the  reader's  patience  to  quote  from  it  the  following: 

"I  would  add  that,  for  my  part,  I  always  suspect  these  confessions, 
which  are  supposed  to  be  the  offspring  of  penitence  and  remorse,  and 
which,  nevertheless,  are  repudiated  by  the  prisoner  at  the  trial.  It  is 
remarkable  that  it  is  of  very  rare  occurrence  for  evidence  of  a  confes- 
sion to  be  given  when  the  proof  of  the  prisoner's  guilt  is  otherwise 
clear  and  satisfactory;  but  when  it  is  not  clear  and  satisfactory  the 
prisoner  is  not  infrequently  alleged  to  have  been  seized  with  the  de- 
sire born  of  penitence  and  remorse,  to  supplement  it  with  a  confession, 
and  this  desire  itself  again  vanishes  as  soon  as  he  appears  In  a  court 
of  justice." 

Ttco  other  leading  "Crown  Cases  Reserved" — Rex  v.  Jones,  Russ.  & 
Ryan,  152,  d3cided  in  1809,  and  Rex  v.  Upchurch,  1  Moody,  C.  C.  4G5, 
decided  in  1836,  are  accepted  as  authorities.  The  report  of  each  is  so 
brief  we  here  give  them  in  full: 

Rex  v.  Francis  Jones 

Larceny. — The  prosecutor  asked  the  prisoner,  on  finding  him,  for  the 
money  he,  the  prisoner,  had  taken  out  of  the  prosecutor's  pack,  but 
before  the  money  was  produced  said,  "he  only  wanted  his  money,  and 
if  the  prisoner  gave  him  that,  he  might  go  to  the  devil  if  he  pleased;" 
upon  which  the  prisoner  took  lis.  6%d.  out  of  his  pocket  and  said 
it  was  all  he  had  left  of  it.  Held,  that  the  confession  ought  not  to 
have  been  received. 


The  prisoner  was  tried  before  Mr.  Justice  Chambre,  at  the  Win- 
chester Lent  assizes,  in  the  year  1809,  upon  an  indictment  for  stealing 
money  to  the  amount  of  II.  88.,  the  property  of  John  Webb,  a  private 
in  the  Somerset  militia. 

A  part  of  the  evidence  was  as  follows: 

The  prosecutor,  who,  as  well  as  others,  had  been  in  pursuit  of  the 
prisoner,  found  him,  at  last,  in  a  room  of  a  public  house,  In  custody 
of  a  constable,  to  whom  he  had  been  delivered  by  a  serjeant  of  marines, 
who  had  apprehended  him.  On  finding  him  there,  the  prosecutor  asked 
him  for  the  money  that  he,  the  prisoner,  had  taken  out  of  the  prose- 
cutor's pack,  upon  which  the  prisoner  took  lis.  GV^d.  out  of  his  pocket, 
and  said  it  was  all  he  had  left  of  it.  The  serjeant  (who  was  In  the 
same  room  with  the  constable  and  the  prisoner)  gave  the  same  ac- 
count of  the  conversation  and  of  the  production  of  the  money  by  the 
prisoner;  but  he  added  that  Webb,  the  prosecutor,  before  the  money 
was  produced,  said  "he  only  wanted  his  money,  and  if  the  prisoner 
gave  him  that,  he  might  go  to  the  devil  if  he  pleased." 

The  money  (lis.  6%d.)  was  taken  charge  of  by  the  serjeant. 

The  learned  judge  left  the  whole  of  this  evidence  for  the  considera- 
tion of  the  jury,  and  they  found  the  prisoner  guilty. 

In  Easter  term,  29th  of  April,  1809,  the  majority  of  the  judges  pres- 
ent, viz.,  Macdonald,  C.  B.,  Chambre,  J.,  Lawrence,  J.,  Le  Blanc,  J.,  and 
Heath,  J.,  held  that  the  evidence  was  not  admissible,  and  the  convic- 


REOINA  V.  ROSE 


279 


tion  wrong.     Wood,  B.,  Grose,  J.,  Mansfield,  C.  J.,  of  C.  B.,  contra. 
Lord  Ellenborough  dubitante. 

Rex  v.  Maria  Ann  UrcK''Rcn. 
A  confession  obtained  from  a  servant  througli  hopes  and  threats 
held  out  by  the  wife  of  the  master  f..id  the  prosecutor  is  inad- 
missible. 

The  prisoner,  a  girl  aged  thirteen,  was  Indicted  and  tried  before  Mr. 
Baron  Parlte,  at  the  Summer  Assizes,  1835,  at  Huntingdon,  for  a  mis- 
demeanor, in  attempting  to  set  flro  to  her  master's  house. 

On  the  part  of  the  prosecution  it  was  stated  that  the  case  could  not 
be  made  out  without  the  prisoner's  confession,  and  the  learned  baron 
received  it  in  evidence,  reserving  the  question  as  to  its  admissibility 
for  the  consideration  of  the  judges.  The  prisoner  was  convicted,  but 
the  learned  baron  deferred  passing  sentence. 

The  prisoner  was  a  domestic  servant  to  the  prosecutor,  wno  kept  a 
beer-house.  His  wife  lived  with  him,  and  took  her  share  of  the  man- 
agement of  the  house.  After  the  attempt  to  set  the  house  on  fire  was 
discovered,  the  prisoner  came  into  the  room  where  her  mistress  was, 
in  the  absence  of  the  prosecutor,  and  her  mistress  said  to  her,  "Mary, 
my  girl,  if  you  are  guilty,  do  confess;  it  will  perhaps  save  your  neck; 
you  will  have  to  go  to  prison;  if  William  H."  (another  person  sus- 
pected, and  whom  the  prisoner  had  charged)  "is  found  clear,  the  guilt 
will  fall  on  you."  She  made  no  answer.  The  mistress  then  said, 
"Pray,  tell  me  if  you  did  it."  The  prisoner  then  confessed. 

It  was  contended  on  the  part  of  the  prisoner  i  that  the  prosecutor's 
wife  had  no  authority,  real  or  apparent,  over  the  prisoner  so  as  to  hold 
out  any  hope  which  would  influence  the  prisoner  to  make  a  false  state- 
ment, in  order  that  her  life  might  be  spared,  and  therefore  that  the 
confession  was  admissible,  and  Rex  v.  Hardwick,  Phillips  on  Evidence, 
105,  and  Rex  v.  Row,  Russ.  &  Ry.  153,  were  cited. 

The  learned  baron  reserved  the  point. 

In  Hilary  Term,  1836,  Lord  Denman,  C.  J.,  Tindal,  C.  J.,  Lord  Abin- 
ger,  C.  B.,  Park,  Llttledale,  Gaselee,  JJ.,  Parke,  Bolland,  Gurney,  BB., 
Williams,  J.,  met  and  considered  this  case,  and  they  thought  the  con- 
fession ought  not  to  have  been  received. 


1^ 

V 


m 


'The  word  "prisoner"  is  evidently  by  mistake  for  the  word  "prosecution,"  in  the 
clause,  "It  was  contended  on  part  of  the  prisoner,''''  but  we  give  it  as  it  appears  in  the 
report.— J.  F.  O. 


11': 
p.  ■■, 


1 


t   - 


250  AMERICAN  CRIMINAL  REPORTS. 

SULMVAX    V.    StATK. 

66  Ark.  506—51  S.  W.  Rep.  828. 

Decided  June  3,  1899. 

CoNFKH,sioN8:  Invaliflated  by  previous  promise. 

1.  A  confosBion  obtained  by  offers  of  favor  made  by  the  owner  of 

stolen  property  is  not  admissible. 

2.  An  instruction,  that  the  proof  of  the  fact  that  the  property  was 

stolen  together  with  the  ronfesaion  Introduced  will  Justify  a  ver- 
dict of  guilty,  is  erroneous,  In  that  it  assumes  certain  facts  to 
have  been  proven. 

Appeal  from  the  Circuit  Court  of  Greene  County;  lion. 
Felix  G.  Taylor,  Judge. 

William  Sullivan,  being  convicted  of  larceny,  appeals.  Re- 
versed. 

Crowley  £  JInddJeslon,  for  the  appellant. 

Jeff  Davis,  Atty.  Gen.,  and  Chas.  Jacohson,  for  the  State. 

Statement  of  facts  hy  the  court. — At  the  Soptenibcr  tonn, 
1895,  of  the  Greene  circuit  court,  the  appellant,  William  Sul- 
livan, was  iu'lieted  for  grand  larceny.  At  the  spring  term, 
1899,  the  cauMO  came  on  for  trial.  Appellant,  waiving  formal 
arraignment,  entered  his  ])lea  of  not  guilty,  was  tried,  ccmvicted, 
and  sentenced  to  one  year  in  the  penitentiary,  and  appealed  to 
this  court. 

The  ovi<lence  upon  which  appellant  was  convicted,  in  part, 
is  as  follows : 

B.  A.  Johnson,  for  the  State:  "Was  acquainted  with  the  ap- 
pellant in  May,  1895.  About  that  time  witness  had  fourteen 
or  fifteen  dollars'  worth  of  meat  stolen  from  him.  Don't  know 
of  my  own  knowledge  who  took  it.  Other  parties  fomid  the 
meat.  I  identified  it  by  a  wire  that  it  was  hung  up  by.  This 
was  in  Greene  county,  Arkansas." 

O.  M.  liatey,  for  the  State:  "Was  a  justice  of  the  peace  in 
Greene  county  in  1895.  At  that  time  two  men  named  Allen 
were  tried  before  me  for  the  larceny  of  some  meat.  William 
Sullivan  testified  before  me  that  time.  I  made  no  promise  to 
him  to  get  him  to  make  a  statement.    Sullivan  testified  that  he 


SULLIVAN  V.  STATE. 


2Sl 


uikI  one  of  tlic  Allen  boys  went  to  C<»1.  Jolinson'rt  snutkc  lioii-c, 
and  prlod  tlio  hinges  off  the  door,  and  wont  in,  luul  carried  off 
a  certiiin  anionnt  of  meat;  took  it  oif  a  piece;  met  tlio  other 
Allen  boy  there  with  n  sack  to  holp  them  carry  it  off.  He  Haid 
they  took  throe  (15)  middlings  and  fonr  (4)  hams.  I  committetl 
William  Sullivan  to  jail.  This  was  some  time  after.  I  made 
no  promise  of  leniency  to  got  him  to  testify.  I  was  using  him 
as  a  witness  against  the  Allen  boys.  I  did  not  bind  him  over 
for  stealing  the  meat,  but  for  stealing  the  clothes."  The  evi- 
dence of  tho  Avitncss  as  to  Sullivan's  testimony  before  him  was 
objected  to  by  appellant,  and  proper  cxcei)tion3  saved,  and  was 
exclude<l  by  tho  court,  and  the  jury  told  not  to  consider  it  at  all. 
B.  A.  Johnson,  for  tho  defense:  "1  had  a  talk  with  Sullivan 
about  stealing  the  moat  before  ho  went  on  tlic  stand  at  Esquiro 
Batoy's.  He  came  to  my  house  not  a  groat  while  after  tho  meat 
was  taken,  and  I  got  after  him  for  I  suspected  that  ho  knew 
about  the  parties.  I  thought  ho  was  young,  and  I  could  get  bitii 
to  tell  about  it.  Ho  told  mo  finally,  after  working  with  him  for 
some  time,  that  he  would  let  me  know  tho  next  day.  Ho  said 
that  he  thought  that  the  meat  could  be  found.  ^ly  recollection 
is  that  he  ^vent  and  had  a  conversation  with  his  aunt,  and  ho 
agreed  to  tell  the  story  if  we  would  agree  to  make  it  easy  with 
him.  I  told  him  that  I  would  make  a  State's  witness  of  him,  to 
help  convict  the  others.  At  the  examining  court  it  Avas  my 
understanding  that  ho  was  not  to  be  bound  over;  that,  if  we 
bound  him  over,  the  whole  thing  was  gone.  I  think  I  told  his 
aunt  to  go  and  see  him,  and  we  would  try  and  make  it  as  light 
on  him  as  possible.  It  was  our  understanding  that  he  would 
not  bo  prosecuted  if  ho  would  testify  against  the  Allen  boys. 
I  was  not  holding  any  office  in  the  county  at  that  time,  nor  act- 
ing in  any  official  capacity  whatsoever.  Sullivan  confessed 
being  Avith  the  Allen  boys  at  the  time  they  stole  the  meat. 
I  simply  told  appellant  that  I  would  do  all  I  could  to  make  a 
State's  witness  of  him  against  the  Allen  boys,  if  be  would  tes- 
tify ;  that,  if  he  would  tell  all  he  knew  about  it,  I  would  do  what 
I  could  to  make  him  a  State's  witness;  that  I  would  use  my 
efforts  to  have  that  done."  Defendant  moved  the  court  to  ex- 
clude the  testimony  of  B.  A.  Johnson  in  regard  to  the  confes- 
sion made  to  him.    Motion  overruled,  and  exceptions  saved. 


it- 


•t '{ 


Ki   '; 


JX. 


282 


AMERICAN  CRIMINAL  REPORTS. 


OrixiON  BY  IIuGiiES,  J.  (after  stating  the  facts).  After 
much  other  testimony  had  been  given,  the  court  instnxcted  the 
jury  ''that  the  confession  made  by  the  defendant  to  Cob  B.  A. 
Johnson,  together  with  the  fact  that  the  meat  was  stolen,  will 
justify  you  in  finding  the  defendant  giiilty."  Defendant  cx- 
cejited. 

The  testimony  of  Col.  B.  A.  Johnson  as  to  the  confessions  of 
the  defendant  Avas  not  admissible.  The  proof  shows  that  they 
were  made  by  the  defendant  in  the  hope  that,  if  he  would  con- 
fess, he  would  be  made  a  State's  witness  against  others,  and  that 
he  would  not  be  bound  over  or  prosecuted  "if  he  would  testify 
against  the  Allen  boys."  This  was  j)roniised  him  by  Col.  B.  A. 
Johnson  before  he  went  on  the  stand  as  a  witness.  Col.  John- 
son, at  the  time  he  induced  the  defendant  to  make  the  confes- 
sions, was  not  in  official  position  of  any  kind;  but  he  Avas  the 
owner  of  the  stolen  meat,  the  pavty  injured,  and  really  the 
prosecutor  in  the  case,  and  as  such  was  a  person  in  authority, 
within  the  meaning  of  the  law. 

In  WaricJcshall's  Case,  1  Leach's  Cr.  Cas.  (2G3),  Eyre,  C.  B.., 
said:  "A  free  and  voluntary  confession  is  deserving  of  the 
highest  credit,  because  it  is  presumed  to  flow  from  the  strongest 
sense  of  guilt,  and  therefore  it  is  admitted  as  proof  of  the  crime 
to  which  it  refers;  but  a  confession  forced  from  the  mind  by 
the  flattery  of  hope  or  by  the  torture  of  fear  comes  in  so  ques- 
tionable a  shape,  when  it  is  to  be  considered  as  the  evidence  of 
jTiiilt,  that  no  credit  ought  to  be  given  to  it,  and  theref<n"e  it  is 
rejected."  "The  material  inquiry,  therefore,  is  whether  the 
confession  has  been  obtained  by  the  influence  of  hope  or  four 
applied  by  a  third  person  to  the  prisoner's  mind."  1  Greenl. 
Ev.,  §  219.  Lord  Campbell  stated  the  rule  to  be  that  "if  there 
be  any  worldly  advantage  held  out,  or  any  harm  threatened,  the 
confession  must  be  excluded."  licg.  v.  Bahhy,  IG  Jur.  5U(),  12 
Eng.  Law  &  Eq.  590.  If  the  threat  or  inducement  is  held  out 
actually  or  constructively  by  a  person  in  authority,  it  cannot  bo 
received,  however  slight  the  threat  or  inducement ;  and  the  pros- 
ecutor, magistrate,  or  constable  is  such  a  person.  1  CJroenl.  Ev., 
§  222;  Com.  v.  Sego,  125  "A[ass.  210;  Knapp's  Case,  10  Pick. 
489;  Charles  v.  State,  11  Ark.  408;  Corlcy  v.  Slate,  50  Ark. 


SULLIVAN  V.  STATE. 


2S3 


305,  7  S.  W.  Rep.  255;  Eeg.  v.  Moore,  IG  Jur.  022,  12  Eng. 
Law  &  Eq.  583. 

It  is  true  that,  the  principle  of  law  that  the  confession  must 
be  voluntary  being  strictly  adhered  to,  the  question  whether  it 
is  voluntary  must  be  decided  primarily  by  the  presiding  judge. 

The  instruction  given  by  the  court  was  clearly  erroneous.  It 
invaded  the  province  of  the  jury,  in  assuming  as  a  fact  that  the 
meat  was  stolen,  and  in  telling  them  to  give  full  credence  to  the 
testimony  of  Johnson,  and  to  the  confession  of  the  defendant 
alleged  to  have  been  made  to  him,  Avhieh  we  have  shown  was 
inadmissible.  It  is  error  for  the  court,  in  charging  a  jury,  to 
assume  facts  to  have  been  proven,  when  they  are  disputed,  or 
to  charge  the  jury  upon  the  weight  of  evidence.  This  is  ele- 
mentary. The  constitution  forbids  it.  For  the  errors  indi- 
cated,  let  the  judgment  be  reversed,  and  the  cause  remanded 
for  a  new  trial. 

BuNN,  C.  J.,  and  Battlk,  J.,  did  not  participate. 

Notes  ox  the  Law  Regarding  Coxfessioxs  (by  J.  F.  G.). — In  theory 
of  law,  while  a  confession  is  not  competent  evidence  to  prove  the  com- 
mission of  a  crime,  a  confession  voluntarily  made  by  the  accused 
is  competent  evidence  tu  connect  him  with  the  crime  charged;  hence 
the  character  cf  the  confession  should  be  such  that,  when  considered 
alone,  it  would  be  prima  facie  sufflcient  to  fully  convince  the  ordinary 
mind  that  the  statements  ( ontained  in  it  are  true. 

So  numerous  have  been  instances  of  confessions  extorted  from  In- 
nocent people  that  both  in  f.ngland  and  America  it  has  become  a  fixed 
rule,  first,  that  the  corpus  delicti  lannot  be  proven  by  confession,  but 
roQuires  other  competent  proof;  second,  where  the  corpus  delicti  has 
been  proven  by  other  evidence,  a  confession  will  not  be  received  to 
fix  guilt  on  the  accused  unless  it  be  free  from  influence  of  fear,  favor 
or  lioi)e. 

As  it  is  unsafe  to  base  a  judicial  conclusion  upon  the  evidence  of  a 
witness  who  is  manifestly  influenced  by  some  motive  other  than  that 
of  simply  relating  the  truth,  so  the  law  regards  it  unsafe  to  receive, 
against  one  accused  of  crime,  statements  made  by  himself  under  the 
influence  of  hope,  favor,  or  fear;  for  in  such  case  the  evidence  does  not 
flow  from  a  desire  to  make  known  the  truth,  and  in  fact  is  not  such 
evidence  as  should  direct  the  mind  in  determining  so  important  an 
issue. 

The  late  Chief  Justice  Shaw  of  Massachusetts,  speaking  of  this  sub- 
ject, says  that  such  confessions  by  an  accused  ought  not  to  be  re- 
ceived, "because  he  may  be  induced  by  the  presence  of  hope  or  fear 
to  admit  facts  unfavorable  to  him,  without  regard  to  the  truth,   in 


R  \< 


284 


AMERICAN  CRIMINAL  REPORTS. 


order  to  obtain  the  promised  relief,  or  to  avoid  a  threatened  danger; 
and,  therefore,  admissions  so  obtained  have  no  Just  or  legitimate 
tendency  to  prove  the  facts  admitted." 

But  few  of  the  confessions  offered  in  evidence  are  made,  or  are 
claimed  to  have  been  made,  previous  to  the  arrest.  Notwithstanding 
the  fact  that  while  at  liberty  the  accused  evinced  no  desire  to  un- 
burden his  conscience  or  to  forfeit  his  right  to  freedom,  nor  displayed 
such  desire,  if  ever,  until  the  arts  and  strategy  of  detectives  are  slvil- 
fully  applied,  yet  the  officer  who  has  received,  or  pretends  to  have  re- 
ceived, the  confession,  is  ever  ready  to  declare  on  his  oath  that  the 
confession  was  free  and  voluntary,  and  made  without  use  of  either 
threat,  suggestion  or  promist.  In  fact,  the  average  police  officer,  sub- 
ject to  the  strict  rules  of  police  discipline  and  biased  by  the  desire  of 
success  and  promotion,  is  predisposed  to  adjudge  the  prisoner  guilty, 
and  deems  it  his  duty,  by  means  lawful  or  unlawful,  to  obtain  a  con- 
fession from  any  person  in  his  custody  whom  he  suspects  to  be  guilty 
of  crime;  and  having  so  obtained  it,  his  corresponding  duty,  to  conceal 
from  the  court  the  means  used,  lest  all  of  his  ingenuity  and  labor  ex- 
pended comes  to  naught  and  himself  the  subject  of  police  ridicule. 
To  make  a  conviction  certain,  and  to  prevent  the  prisoner  from  repu- 
diating the  extorted  confession,  it  Is  generally  reduced  to  writing, 
signed  and  sworn  to.  The  original  statement,  necessarily  somewhat 
disconnected,  and  the  crude  language  not  meeting  with  the  approval 
of  the  scribe,  the  entire  matter  is  put  in  form  In  which  those  parts 
not  desired  may  be  eliminated  as  immaterial,  but  in  which  the  desired 
features  lose  none  of  their  force,  if  they  are  not  even  accentuated  at 
the  will  of  the  scribe. 

Common  knowledge  as  to  the  surroundings  of  the  ordinary  prisoner 
and  the  means  used  and  influences  brought  to  bear  upon  him  in  the 
average  police  station  or  jail,  together  with  the  experience  of  courts 
in  relation  to  confessions,  have  induced  courts  to  recognize  as  a  fixed 
rule  that  no  confession  shall  be  admitted  in  evidence  unless,  upon  a 
preliminary  inquiry,  the  court  from  the  evidence  is  satisfied  that  the 
confession,  if  made,  was  free  and  voluntary. 

Previous  to  admitting  an  alleged  confession  in  evidence,  a  prelim,' 
inary  hearing  as  to  its  admissibility  must  be  had,  in  tchich  the  burden 
is  on  the  prosecution  to  prove  that  a  confession  icas  made,  and  that  it 
icas  freely  and  voluntarily  made. — In  Thompson  v.  Commonwealth, 
20  Grat.  (Va.)  724,  the  court  said:  "That  the  confession  is  voluntary, 
being  therefore  a  condition  precedent  of  its  admissibility,  and  the  duty 
of  deciding  on  its  admissibility  being  a  duty  which  devolves  on  the 
court,  it  follows,  necessarily,  that  the  court  must  be  satisfied  that  the 
confession  was  voluntary,  before  it  can  be  permitted  to  go  to  the  jury; 
in  other  words,  that  the  burden  of  proof  that  it  was  voluntary  de- 
volves on  the  Commonwealth." 

In  Nicholson  v.  State,  38  Md.  140,  after  reviewing  the  authorities, 
the  court  said:  "And  we  may  add,  that  very  great  injustice  might  in 
some  cases  be  done  to  the  prisoner  by  allowing  a  confession  made  by 
him  to  be  given  in  evidence  before  the  court  is  satisfied  that  it  teas 
voluntarily  made;  for,  as  suggested  in  the  appellant's  brief,  it  would 


SULLIVAN  V.  STATE. 


2S5 


be  difficult  for  the  jury,  In  deciding  the  question  of  admisslljllity,  not 
to  be  influenced  by  the  confession  itself,  which  they  ought  not  to 
hear  unless  its  admissibility  is  first  clearly  established  to  the  satis- 
faction of  the  court.  Of  course  the  credibility  of  tha  witness  is  a 
question  for  the  jury  to  decide,  in  the  same  manner  as  they  pass  upon 
the  credibility  of  other  witnesses  In  the  cause."  The  credibility  of 
the  witness  Is  twice  passed  upon;  first,  by  the  court  on  the  question 
of  admissibility;  and  second,  by  the  jury  in  weighing  the  testimony. 

In  Washington  v.  State,  53  Ala.  29,  the  court  said:  "Befofe  any  con- 
fession can  be  received  in  a  criminal  case  it  must  be  shown  to  the 
court  that  it  was  voluntary — that  Is,  made  without  the  appliance  of 
hope  or  fear  by  any  other  person." 

In  Owen  v.  State,  78  Ala.  425,  6  Am.  Crim.  Rep.  206,  the  court  said: 
"The  rule  Is  clearly  settled  in  Alabama  as  elsewhere,  that  confessions 
cannot  be  given  in  evidence  against  a  person  charged  with  crime  until 
they  are  first  shown  to  the  satisfaction  of  the  court  to  hp  'e  been  vol- 
untarily made."  See  also  Johnson  v.  State,  59  Ala.  34,  3  Am.  Crim. 
Rep.  25G. 

In  Ucfjina  v.  Thompson,  17  Cox,  C.  C.  641,  G9  Law  Term  Rep.  24, 
2  Q.  B.  12,  9  Am.  Crim.  Rep.  2G9,  one  of  the  Crown  Cases  Reserved, 
decided  in  1893,  after  reviewing  the  authorities,  the  court  said:  "If 
these  principles  and  the  reasons  for  them  are,  as  it  seems  impossible 
to  doubt,  well  founded,  they  afford  to  magistrates  a  simple  test  by 
which  the  admissibility  of  a  confession  may  be  decided.  They  have 
to  ask:  Is  it  proved  afllrmatively  that  the  confession  was  free  and 
voluntary — that  is,  was  it  preceded  by  any  Inducement  held  out  by  a 
person  in  authority  to  make  a  statement?  If  so,  and  the  inducement 
has  not  clearly  been  removed  before  the  statement  was  made,  evi- 
dence of  the  statement  Is  inadmissible." 

In  liegina  v.  Warningham,  2  Den.  447,  Baron  Parke,  addressing  the 
counsel  for  the  prosecution,  says:  "You  are  bound  to  satisfy  me  that 
the  confession  which  you  seek  to  urge  against  the  prisoner  was  not 
obtained  from  him  by  improper  means."  Not  being  satisfied  that  such 
was  the  case,  he  rejected  the  evidence  of  the  witness. 

It  will  be  observed  that  in  Regina  v.  Rose,  reported  as  one  of  the 
leading  cases  in  this  volume,  page  275,  Lord  Russell,  C.  J.,  said:  "It 
is  to  be  borne  in  mind,  not  only  by  the  magistrates,  but  by  the  prose- 
cuting counsel,  and  by  solicitors  having  charge  of  the  prosecutions, 
that  they  must  satisfy  themselves,  before  putting  a  confession  in  evi- 
dence, that  the  confession  was  not  obtained  under  such  circumstances 
as  to  be  inadmissible."  A  duty  resting  upon  both  court  and  prosecu- 
tion, the  performance  of  which  each  frequently  endeavors  to  cast  upon 
the  other,  leaving  the  prisoner  at  the  mercy  of  the  jurors  with  a 
police-confession  thrust  upon  them,  indorsed  with  the  approval  of 
both  the  court  and  the  prosecuting  attorney. 

In  a  preliminary  Inquiry  the  following  took  place: 

Q.  Did  you  say  to  him  that  it  would  be  better  for  him  to  make  a 
full   disclosure? 

A.  I  don't  know  but  that  something  of  that  kind  might  have  been 
said. 


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AMERICAN  CRIMINAL  REPORTS. 


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Q.  Do  you  know  by  whom? 

A.  I  do  not  know. 

Q.  But  by  some  one  of  you? 

A.  It  may  have  been  said. 

Q.  Isn't  your  Impression  that  some  such  remark  was  made  to  him? 

A.  It  is  possible. 

The  confession  was  admitted  and  the  defendant  convicted,  but  th(» 
conviction  was  reversed;  and,  in  reversing,  the  court  said: 

"The  court  below  should  have  been  satisfied  that  the  confession 
was  voluntary;  certainly  the  preliminary  testimony  was  of  a  nature 
to  excite  the  gravest  suspicion  that  improper  inducements  had  been 
held  out  to  elicit  it.  But  the  testimony  affirmatively  established  the 
inadmissibility  of  evidence  of  the  confession.  It  would  be  substituting 
sound  for  sense  to  say  that  the  prosecuting  witness  did  not  in  effect 
declare  that  the  sheriff  or  his  deputy,  or  he  himself  in  their  presence 
and  hearing,  said  to  the  prisoner,  'It  will  be  better  for  you  to  make 
a  full  disclosure.'  The  rule  is  without  exception  that  such  a  promise 
made  by  one  in  authority  will  exclude  a  confession.  Public  policy 
absolutely  requires  the  rejection  of  confessions  obtained  by  means  of 
inducements  held  out  by  such  persons."  Later  in  the  opinion  the 
court  said:  "We  cannot  too  strongly  urge  on  the  district  attorneys 
never  to  offer  evidence  of  confessions,  except  it  has  first  been  made 
to  appear  that  they  were  made  voluntarily.  We  ought  not  to  be  com- 
pelled to  reverse  a  judgment  because  of  a  violation  of  so  well  estab- 
lished a  rule  of  law."  People  v.  Barrie,  49  Cal.  342,  1  Am.  Crlm.  Rep. 
178. 

Mr.  Taylor,  in  his  Law  of  Evidence,  recognizes  this  as  a  settled  doc- 
trine. In  section  872  we  find  the  following:  "Before  any  confession 
can  be  received  in  evidence  in  a  criminal  case,  it  must  be  shown  to 
have  been  voluntarily  made;  for, — to  adopt  the  somewhat  inflated 
language  of  Chief  Baron  Eyre, — 'a  confession  forced  from  the  mind  by 
the  flattery  of  hope,  or  by  the  torture  of  fear,  comes  in  so  question- 
able a  shape,  when  it  is  to  be  considered  as  the  evidence  of  guilt,  that 
no  credit  ought  to  be  given  to  it;  and  therefore  it  is  rejected.'  The 
material  question,  consequently,  is,  whether  the  confession  has  been 
obtained  by  the  influence  of  hope  or  fear;  and  the  evidence  to  this 
point,  being  in  its  nature  preliminary,  is — as  we  have  seen — addressed 
to  the  judge,  who  will  require  the  prosecutor  to  show  affirmatively, 
to  his  satisfaction,  that  the  statement  was  not  made  under  the  in- 
fluence of  an  improper  inducement,  and  who,  in  the  event  of  any 
doubt  subsisting  on  this  head,  will  reject  the  confession." 

A  hasty  reading  of  Lefever  v.  State,  50  Ohio  St.  384,  35  N.  E.  Rep. 
52,  and  livfer  v.  State,  25  Ohio  St.  464,  would  imply  a  contrary  rule 
held  in  that  State.  In  the  Lefever  Case,  while  holding  that  the  de- 
fendant had  a  right  to  be  heard  upon  the  preliminary  inquiry,  the 
court  gave  as  a  reason,  that  in  the  Riifer  Case  the  doctrine  was  an- 
nounced that  the  burden  rested  upon  the  defendant,  and,  therefore, 
that  the  defendant  had  the  right  to  introduce  evidence  to  impeach 
the  confession.  In  the  Hufer  Case  the  question  arose  as  to  whether  or 
not  the  defendant  had  a  right  to  cross-examine  the  witness  offered  to 


SULLIVAN  V.  STATE. 


2S7 


prove  a  confession  (and  who  had  stated  It  to  he  a  voluntary  confes- 
sion) previous  to  the  introduction  of  the  confession  in  evidence;  and 
in  discussing  that  question,  without  citing  any  authorities  upon  the 
subject,  the  court  remarlied  that  it  devolved  upon  the  defendant  to 
prove  that  the  confession  was  improperly  obtained.  It  may  well  be 
doubted,  whether,  upon  full  argument,  that  court  would  adhere  to  the 
doctrine  that  was  incidentally  announced,  when  the  exact  proposition 
does  not  seem  to  have  been  discussed. 

In  the  preliminary  inquiry  the  defendant  has  the  right  both  to  cross- 
examine  the  tvitncsses  offered  to  prove  a  confession  and  to  introduce 
rebuttal  testimony. — In  Biscoe  v.  State,  67  Md.  6,  8  Atl.  Rep.  571,  the 
court  said:  "The  prisoner  also  offered  to  prove  by  other  witnesses  that, 
prior  to  the  interview  at  which  the  confession  was  made,  Morgan  had 
held  out  inducements  to  the  prisoner  to  confess,  and  also  what  was 
said  by  Morgan  c»t  the  time.  This  offer  the  court  refused,  saying  at 
the  time  that,  if  it  should  appear  in  the  subsequent  progress  of  the 
trial  that  inducements  were  in  fact  held  out  to  the  prisoner,  and  that 
the  confession  was  made  in  consequence  of  such  inducements,  the 
court  would  direct  the  confession  to  be  stricken  out.  This  was  not, 
we  think,  the  proper  practice.  Before  permitting  the  witness  to  tes- 
tify in  regard  to  the  confession,  the  court  ought  to  have  ascertained, 
first,  whether  any  inducements  at  the  time,  or  prior  thereto,  had  been 
held  out  to  the  prisoner;  and  in  the  next  place,  whether  he  was  in- 
fluenced by  such  inducements  in  making  the  confession.  The  court 
may,  it  is  true,  rule  out  a  confession,  even  after  it  has  been  admitted 
in  evidence,  if  satisfied,  in  the  subsequent  progress  of  the  case,  that 
it  was  not  a  free  and  voluntary  confession,  and  may  instruct  the  jury 
that  it  is  not  to  be  considered  by  them  in  determining  the  question  as 
to  the  guilt  or  Innocence  of  the  prisoner;  but  once  in,  it  may  have  an 
influence  more  or  less  prejudicial  against  the  prisoner.  The  prelim- 
inary question,  therefore,  as  to  its  admissibility,  is  one  which  ought, 
in  all  cases,  to  be  decided  by  the  court  before  it  is  permitted  to  go  be- 
fore the  jury.    Nicholson  v.  State,  38  Md.  140." 

In  Brown  v.  State,  71  Ind.  470,  in  construing  a  statute,  which  pro- 
viujd  as  follows:  "The  confession  of  the  defendant,  made  under  in- 
ducements, where  all  the  circumstances,  may  be  given  in  evidence 
against  him,  except  when  made  under  influence  of  fear,  produced  by 
threats;  but  a  confession  made  under  inducement  is  not  sufficient  to 
warrant  a  conviction  without  corroborating  testimony,"  the  court 
said:  "Under  this  statute,  confessions  made  under  inducements  may 
be  divided  into  two  classes, — the  first  embracing  all  those  made  under 
Inducement,  except  those  made  under  the  influence  of  fear  produced 
by  threats;  and  the  second,  all  those  made  under  the  influence  of  fear 
produced  by  threats.  Confessions  of  the  first  class  may  be  given  in 
evidence,  with  all  the  circumstances.  Those  of  the  second  class  are 
not  competent  to  be  given  in  evidence  at  all.  It  is  with  confessions 
of  the  second  class  that  we  ha*ve  to  deal  in  this  case.  It  is  a  general, 
if  not  a  universal,  rule  of  the  law  that  it  is  for  the  court  to  determine 
the  competency  of  evidence;  and  the  competency  should  be  deter- 
mined before  the  evidence  goes  to  the  jury,  because.  If  incompetent, 


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AMERICAN  CRIMINAL  REPORTS. 


It  should  not  go  to  the  jury  at  all.  When  the  competency  of  evldpnce 
depends  upon  extrinsic  facts,  as,  in  this  case,  upon  the  question 
whether  the  confessions  were  made  under  the  influence  of  fear,  pro- 
duced by  threats,  how  can  the  court  determine  the  question  of  com- 
petency without  hearing  the  evidence  offered  on  that  subject?  Doubt- 
less, confessions  of  the  defendant  are  prima  facie  competent;  but 
when  objection  is  made  by  the  defendant  to  their  competency,  and 
evidence  is  olfered  by  him  in  support  of  the  objection,  the  court  can- 
not determine  the  objection  without  hearing  the  evidence;  nor  can  it 
relegate  the  question  to  the  jury,  for  it  is  the  duty  of  the  court  to 
pass  upon  it  in  the  first  instance,  before  the  evidence  can  legally  go 
to  the  jury.  It  seems  to  us  clear,  on  principlt  as  well  as  authority, 
that  the  court  erred  in  refusing  to  hear  the  evidence  offered  by  the 
defendant  to  show  that  the  confessions  were  made  under  the  Influ- 
ence of  fear  produced  by  threats.  This  view  is  supported  by  Whart. 
Crim.  Ev.  (8th  ed.),  §  689;  Com.  v.  Culver.  126  Mass.  464." 

In  Palmer  v.  State,  136  Ind.  393,  36  N.  E.  Rep.  130,  the  sole  ground 
of  reversal  was  that  the  court  below,  while  conducting  the  prelimi- 
nary inquiry  as  to  the  admission  of  a  confession,  limited  the  defend- 
ant's right  to  cross-examination  of  the  witness  supporting  the  de- 
fendant's confession,  and  denied  the  defendant's  right  to  introduce 
evidence  to  show  that  the  confession  was  the  result  of  fear,  intimida- 
tion and  threats. 

In  State  v.  Platte,  34  La.  Ann.  1061,  the  court  said:  "It  is  elementary 
that  the  confession  of  an  accused  is  not  admissible  against  him  unless 
it  is  a  free  and  voluntary  confession,  and  its  character  as  such  must 
be  first  shown,  as  a  prerequisite  to  its  admission.  When  the  State 
offers  to  make  such  p'oof,  the  issue  as  to  the  character  of  the  con- 
fession is  properly  raised,  and  both  sides  have  the  right  to  be  heard 
on  this  issue.  The  inquiry,  on  a  point  of  such  vital  importance  to  an 
accused,  should  be  free  and  full,  and  is  not  to  be  closed  at  the  very 
instant  that  the  State  manages  to  eke  out  from  the  prosecuting  wit- 
ness that  she,  the  witness,  had  made  no  threats  or  promises,  and  all 
opportunity  denied  to  the  other  party  to  be  heard." 

Another  very  interesting  case  upon  this  topic  is  that  of  Common- 
uealth  V.  Culver,  126  Mass.  464,  published  as  a  leading  case  in  3  Amer- 
ican Criminal  Reports,  81. 

It  is  within  the  province  of  the  jury  to  weigh  all  the  evidence  sub- 
mitted to  it  in  relation  to  a  confession. — Although  the  jury  must  ac- 
cept, for  consideration,  all  evidence  which  the  court  admits  as  compe- 
tent, no  obligation  rests  upon  the  jury  to  believe  any  witness  who 
testifies  in  support  of  an  alleged  confession,  if.  in  the  opinion  of  the 
jury,  the  testimony  of  such  witness  is  of  a  doubtful  character;  for  it 
is  within  the  province  of  the  jury  to  weigh  the  testimony  and  to  pass 
upon  the  credibility  of  the  witnesses;  accordingly,  the  jury  must  ac- 
cept the  evidence  as  competent,  but  may  reject  the  testimony  as  un- 
worthy of  belief.  The  testimony  given  upon  the  preliminary  inquiry, 
being  addressed  to  the  court,  should  afterwards  be  given  to  the  jury; 
hence,  that  which  on  a  preliminary  inquiry  may  impress  the  court  as 


SULLIVAN  V.  STATE. 


2S0 


truth,  mav  fail  to  convince  the  Jury;   and  that  which  is  admitted  as 

0  subject  for  consideration  may  be  rejected  upon  consideration. 
Confessions  obtained  by  threats  or  sugycstions  of  favor,  inadmissi- 

lle_ — Tlie  rule  was  announced  In  iitate  v.  Roberts,  12  N.  C.  259,  by 
Chief  Justice  Taylor,  as  follows:  "The  true  rule  Is,  that  a  confession 
cannot  be  received  in  evidence,  where  the  defendant  has  been  influ- 
enced by  any  threat  or  promise;  for,  as  has  been  justly  remarked,  the 
mind,  under  the  pressure  of  calamity,  is  prone  to  acknowledge  indis- 
criminately a  falsehood  or  a  truth,  as  different  emotions  may  prevail; 
and,  therefore,  a  confession  obtained  by  the  slightest  emotions  of  hope 
or  fear  ought  to  be  rejected." 

"If  I  tell  you,  won't  you  hurt  me?"  asked  a  negro  girl  of  the  con- 
stable who  arrested  her.  The  constable  replied:  "No,  you  shan't  be 
hurt;  I  came  here  to  arrest  you  and  you  shan't  be  hurt."  She  hesi- 
tated, repeated  hnr  inquiry,  received  the  same  promise,  and  then  con- 
fessed, which  confession  being  admitted  in  evidence,  she  was  con- 
victed; but  the  judgment  was  reversed  upon  the  ground  that  the  con- 
fession was  inadmissible.  Earp  v.  State,  55  Ga.  136,  1  Am.  Crim.  Rep. 
171. 

A  negro  boy  about  eighteen  years  of  age,  being  arrested  for  burglary, 
ard  goods  found  in  his  possession  being  identified,  his  employer  said: 
"Tom,  this  is  mighty  bad;  they  have  got  the  dead  wood  on  you,  and 
you  will  be  convicted,"  and  advised  the  prisoner  if  he  had  anything 
to  say  to  do  so.  The  prosecutor  said  to  the  prisoner,  "You  are  very 
young  to  be  in  such  a  difficulty  as  this;  there  must  have  been  some 
one  with  you  who  was  older;  and  I,  if  in  your  place,  would  tell  who 
it  was;  it  is  not  right  for  you  to  suffer  the  whole  penalty,  and  let  some 
one  who  is  guiltier  go  free,  that  it  might  go  lighter  with  him."  The 
prisoner  confessed,  which  confession  was  admitted  in  evidence  at  the 
trial;  but  the  conviction  was  reversed.    Newvian  v.  State,  49  Ala.  9, 

1  Am.  Crim.  Rep.  173. 

This  subject  is  very  ably  reviewed  by  the  Supreme  Court  of  the 
United  States  (Bram  v.  United  States,  168  U.  S.  532,  18  Sup.  Ct.  183.  10 
Am.  Crim.  Rep.  547)  by  Mr.  Justice  White,  who  devotes  about  eighteen 
pages  of  the  opinion  to  a  review  of  the  subject,  citing  many  cases,  both 
English  and  American.  See  also  Sparf  et  al.  v.  United  States,  156 
U.  S.  51,  15  Sup.  Ct.  Rep.  273,  10  Am.  Crim.  Rep.  168;  Queen  v.  Thomp- 
son, 9  Am.  Crim.  Rep.  269;  Williams  v.  Commonwealth,  27  Graft. 
(Va.)  997,  2  Am.  Crim.  Rep.  67;  Flagg  v.  People,  40  Mich.  706,  3  Am. 
Crim.  Rep.  70;  State  v.  Tatro,  50  Vt.  483,  3  Am.  Crim.  Rep.  165;  State 
V.  Bay,  55  Vt.  510,  4  Am.  Crim.  Rep.  104;  People  v.  Stewart,  75  Mich. 
21,  42  N.  W.  Rep.  662,  and  the  cases  and  notes  in  the  present  volume. 
The  subject  is  treated  of  in  1  Greenleaf  on  Evidence,  sees.  219-223, 
inclusive;  in  Roscoe's  Criminal  Evidence,  pp.  29-38,  inclusive;  and 
in  Wharton's  Criminal  Evidence,  sees.  657-674,  inclusive. 

An  illustrative  case. — The  following  is  the  opinion  in  full  in  Brown 
V.  People,  91  111.  506: 

Per  Cuuiam:  The  accused  was  indicted  for  burglary,  and  on  the 
trial  he  was  found  guilty,  and  sentenced  to  the  penitentiary  for  the 
Vol.  XI -19 


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AMERICAN  CRIMINAL  REPORTS. 


ii 


period  of  one  year.  On  looking  into  tlie  testimony  found  in  the  record 
we  are  satisfied  it  does  not  warrant  the  conviction.  Much  of  the  tes- 
timony admitted  against  the  objections  of  defendant  was  Incompetent. 
The  accused  was  advised  to  malce  a  confession,  and  in  attempting  to 
do  so  he  made  several  different  statements,  all  of  which  are  shown 
by  other  testimony  to  be  absolutely  untrue. 

The  verdict  is  so  much  a:jalnst  the  weight  of  the  evidence  it  ought 
not  to  be  permitted  to  stand,  and  for  that  reason  we  have  not  deemed 
it  necessary  to  consider  the  instructions  given  at  the  trial. 

The  judgment  will  be  reversed  and  the  cause  remanded. 

Judgment  reversed. 

From  Roscoe's  Criminal  Evidence,  page  29:  "Three  men  were  tried 
and  convicted  of  the  murder  of  a  Mr.  Harrison.  One  of  them  con- 
fessed himself  guilty  of  the  fact,  under  a  promise  of  pardon;  the  con- 
fesion,  therefore,  was  not  given  in  evidence  against  him;  and  a  few 
years  afterwards  it  appeared  that  Mr.  Harrison  was  alive." 

Undue  influence  once  exerted  is  presumed  to  continue  until  the  con- 
trary clearly  appears;  accordingly,  suggestions  of  favor,  or  threats  once 
made,  render  confessions  made  upon  subsequent  days  inadmissible. — 
In  Barnes  v.  State,  36  Tex.  356,  the  court  said:  "The  legal  proposition 
that  confessions  made  while  under  art  arrest.  Induced  by  promises  or 
threats,  cannot  be  used  in  evidence  agaiast  the  party  making  them, 
has  been  too  long  definitely  settled  to  now  require  argument  or  cita- 
tion of  authorities  to  sustain  it.  It  is  also  quite  well  settled  that,  as 
a  presumption  of  law,  the  influence  of  threats  or  promises  once  made 
continue  to  operate  until  rebutted  by  proof  clearly  showing  that  it 
had  ceased  to  operate.  Peter  v.  State,  4  Sm.  &  M.  31;  Van  Buren  v. 
State.  24  Miss.  513;  State  v.  Guild,  5  Halst.  163;  State  v.  Field  d-  Web- 
ber. 4  Tenn.  140." 

The  Supreme  Court  of  Louisiana  announced  as  an  offlcial  syllabus 
to  State  V.  Alims,  43  La.  Ann.  532,  9  So.  Rep.  113,  the  following: 

1.  Confessions  of  the  accused  will  not  be  received  against  him  un- 
less they  are  voluntary. 

2.  When  promises,  offering  an  advantage  to  the  accused,  have  been 
made  to  him  in  order  to  induce  a  confession  by  the  prosecutor,  and 
he  invites  him  to  call  on  him  the  next  day.  and  the  prosecutor  does 
so,  and  without  any  invitation  of  the  accused  renews  the  same  prom- 
ises, whereupon  the  accused  confesses,  they  will  be  regarded  as  one 
entire  act,  operating  from  the  time  the  first  Inducements  were  offered 
to  the  accused. 

Error  in  admitting  an  incompetent  confession  is  not  cured  by  a 
subsequent  exclusion  of  it.  It  is  error  to  permit  the  prosecuting  at- 
torney to  cross-examine  the  accused  as  to  an  incompetent  confession, 
and  it  is  additional  error  to  then  permit  the  confession  to  be  admitted 
as  impeaching  testimcny. — So  valuable  as  an  authority  on  the  above 
proposition  is  the  case  of  State  v.  Shepherd  et  al.,  88  Wis.  185,  59 
N.  W.  Rep.  449,  decided  May  25,  1891,  that  we  here  give  the  opinion 
In  full: 

OuTON,  C.  J.  The  defendants  were  informed  against,  tried,  con- 
victed, and  sentenced  to  imprisonment  in  the  State  prison  for   the 


SULLIVAN  r.  STATE. 


291 


crime  of  robbery  and  stealing  from  the  person  of  one  Joseph  Preedon 
the  sum  of  $20.  As  we  understand  the  record,  there  are  but  two  as- 
signments of  error:  (1)  The  court  admitted  in  evidence  tlie  confession 
of  the  defendant  Joseph  Shephard  to  the  police  officers  while  he  was 
In  custody  in  the  common  jail,  and  the  evidence  had  its  effect  on  the 
jury,  and  then  the  court  excluded  it  as  l)eing  a  confession  made  under 
duress,  and  extorted  by  threats,  promises,  and  by  falsehood.  The 
court  should  have  determined  whether  the  confession  was  admissible 
before  it  was  given  in  evidence.  (2)  That  the  court,  after  having  ex- 
cluded the  confession  as  incompetent,  allowed  the  district  attorney 
to  cross-examine  the  defendant  Shephard,  who  had  offered  himself  as 
a  witness,  as  to  whether  he  made  such  confession,  and,  he  having  de- 
nied It,  allowed  evidence  on  behalf  of  the  State  to  contradict  the  tes- 
timony of  Shephard  by  evidence  that  he  did  make  such  confession, 
and  the  particulars  thereof. 

1.  We  are  of  the  opinion  that  said  first  error  is  well  assigned.  The 
testimony  was  before  the  court  as  to  the  manner  in  which  the  con- 
fession had  been  obtained,  and  the  court  should  have  decided  it  as  a 
preliminary  question  before  admitting  the  whole  confession  in  evidence. 
Every  word  of  the  confession  was  fastened  on  the  mind  of  the  jury, 
and  had  made  its  impression  there  against  the  accused.  Its  subse- 
quent rejection  by  the  court  would  not  erase  or  remove  that  impres- 
sion. It  had  produced  its  lasting  effect  upon  the  jury,  and  must  have 
affected  their  verdict.  The  remarks  of  the  learned  judge  in  ruling 
upon  the  objections  to  the  evidence  were  well  calculated  to  deepen 
the  impression  already  made  by  the  evidence  upon  the  minds  of  the 
jury.  We  cannot  but  think  that  this  was  a  material  error,  and  pre- 
judicial to  the  accused. 

2.  The  method  here  adopted  to  get  the  confession  of  Joseph  Shep- 
hard in  evidence,  after  it  had  been  excluded  by  the  court  as  being  in- 
competent and  inadmissible,  by  reason  of  its  having  been  extorted  by 
promises  of  Immunity  and  threats  of  injury  and  by  falsehood,  was 
certainly  very  ingenious  and  plausible.  It  would  seem  as  if  it  was 
made  to  fit  the  case  of  Com.  v.  TolUfer,  119  Mass.  313.  It  was  this  case 
that  induced  the  court  to  admit  the  evidence.  That  was  also  a  case 
of  robbery,  and  by  more  than  one  defendant,  and  one  of  them  made  a 
confession  to  the  officers  in  the  jail.  The  testimony  of  the  officer  was 
first  taken  as  to  the  manner  in  which  the  confession  was  obtained 
(and  the  manner  was  about  the  same  as  in  this  case),  and  the  court 
ruled  that  the  confession  was  incompetent,  and  should  not  be  intro- 
duced in  evidence.  About  the  only  difference  from  this  case  is  that 
the  jury  did  not  hear  the  confession.  It  is  to  be  regretted  that  the 
court  did  not  follow  that  case  in  this  respect.  The  case  is  not  very 
fully  reported,  but  the  principle  established  seems  to  be  that  although 
the  testimony  of  the  confession  was  incompetent,  yet,  where  the  ac- 
cused offered  himself  as  a  witness,  he  became  such,  as  any  other  wit- 
ness, and  might  be  asked  whether  he  made  the  confession,  and,  if  he 
denies  it,  the  confession  itself  might  be  proved  to  contradict  him  by 
way  of  impeachment.  No  other  reason  is  given.  The  case  is  unsatis- 
factory, and  we  cannot  follow  it.     The  confession  was  rejected   be- 


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AMERICAN  CRIMINAL  REPORTa 


cause  It  was  extorted.  It  was  unfair  to  the  accused,  and  should  not 
be  proved  against  him,  and  is  condemned  by  the  court  and  ruled  out. 
When  the  defendant  was  asked  if  he  made  that  confession,  and  denied 
It,  the  same  witnesses  who  extorted  the  confession,  and  whose  tesii- 
mony  was  disallowed  on  that  account,  are  allowed  to  testify  to  tlio 
confession,  however  wickedly  or  wrongly  it  was  obtained,  on  the  px- 
ceedingly  narrow  theory  that  It  Is  not  admitted  as  a  confesFlon,  jjiii 
merely  to  contradict  the  witness.  The  confession  Is  allowed  to  go 
to  the  jury,  and  have  its  effect  In  convicting  the  defendant,  and  over- 
ride the  ruling  of  the  court  that  It  was  inadmissible  us  evideiun 
apainst  him,  and  for  such  a  petty  reason.  The  confession  is  just  as 
objectionable  as  evidence,  and  as  incompetent  and  hurtful,  when  of- 
fered in  one  way  as  in  another.  If  no  other  evi>lence  on  the  ground 
of  contradicting  the  defendant  as  a  witness  could  be  found,  he  had 
better  have  gone  uncontradicted  than  that  his  legal  rights  as  a  priy- 
oner  should  be  so  violated,  and  his  conviction  olitained  by  such  un- 
lawful testimony.  The  object  is  to  get  the  confession  in  evidence. 
It  cannot  be  done  directly,  but  it  can  be  done  indirectly.  It  cannot 
be  used  to  convict,  but  it  can  be  used  to  contradict  the  defendant,  and 
In  that  way  It  Is  used  to  convict  him  all  the  same.  We  cannot  adopt 
such  a  principle  or  practice  in  the  administration  of  criminal  law. 
It  is  unreasonable  as  well  as  unjust.  This  evidence  was  inadmissible 
on  the  familiar  ground  that  a  witness  cannot  be  cross-examined  and 
contradicted  in  respect  to  matters  not  admissible  in  evidence  as  part 
of  the  case.  Whart.  Cr.  Ev.,  sec.  484.  That  confession  first  went  to 
the  jury,  and  produced  its  effect  as  evidence,  before  it  was  excluded 
by  the  court,  and  finally  goes  to  the  jury  as  competent  evidence  by 
way  of  contradicting  the  defendant.  It  seems  impossible  to  keep  it 
out,  however  objectionable  or  incompetent  it  was  8=  evidence  against 
the  accused.  That  it  was  incompetent  is  not  an  open  question  in  the 
case.     The  court  so  decided  in  favor  of  the  defendants. 

For  the  above  errors  the  judgment  must  be  reversed,  and  a  new 
trial  ordered.  The  judgment  of  the  circuit  court  is  reversed,  and  the 
cause  remanded  for  a  new  trial.  The  warden  of  the  State  prison  at 
Waupun  is  hereby  ordered  to  deliver  the  defendants  into  the  custody 
of  the  sheriff  of  the  county  of  Ashland,  to  be  held  by  him  until  they 
are  discharged  from  his  custody  according  tc  law. 

The  corpus  delicti  cannot  be  proved  hy  a  confession. — This  proposi- 
tion is  sustained  by  sections  632-633,  Wharton's  Criminal  Evidence, 
and  cases  there  cited.  One  of  the  illustrations  given  by  Mr,  Wharton 
is  the  case  of  Pitts  v.  State,  43  Miss.  472.  In  that  case  the  evidence 
showed  that  one  James  Magee  died  with  symptoms  which  might  in- 
dicate poisoning,  congestion  of  the  brain,  or  disease  of  the  heart.  The 
defendant  confessed  that  he  had  prepared  poison  and  sent  it  by  an- 
other person  to  be  administered  to  Magee.  A  conviction  was  had,  but 
reversed  because  the  corpus  delicti  was  not  proven  by  evidence,  other 
than  that  of  the  confession. 

The  case  of  State  v.  Dubois,  54  Iowa,  363,  6  N.  W.  Rep.  578,  is  also 
a  very  interesting  case  upon  this  subject.  The  Iowa  statute  does  not 
permit  a  conviction  unless  the  corpus  delicti  be  established  by  proofs 


SULLIVAN  r.  STATE. 


293 


otlipr  than  a  confession  of  the  defendant  made  out  of  court,  which 
is  substantially  the  re-enacting  of  the  common  law.  The  defen.lant 
wus  Indicted  tor  larceny,  In  that  he  found  lost  property  and  feloni- 
ously appropriated  It  to  his  own  itse.  The  owner  had  the  money  and 
notes  In  his  possession  a  short  time  before  the  loss.  He  went  to  the 
sheriff  to  secure  his  services  In  finding  the  property,  and  In  the  preb- 
•  ence  of  the  defendant  made  statements  In  regard  to  the  losing  of  the 
property  and  its  value.  This  evidence  was  Introduced  apparently  for 
the  purpose  of  proving  that  the  defendant  being  present  and  hearing 
the  statements  must  be  regarded  as  admitting  them.  It  was  also 
shown  that  the  defendant  admitted  to  various  persons  that  he  had 
found  the  property,  and  had  even  done  so  in  one  or  two  letters  writ- 
ten to  his  brother.  The  Supreme  Court  said  that  the  explanations  given 
by  the  defendant  were  "e.\tremely  unsatisfactory,"  but  reversed  the 
case  because  there  was  no  positive  proof  of  a  corpus  delicti,  the  court 
saying:  "Our  views  and  conclusions  are  based  upon  the  most  familiar 
principles  of  the  law.  We  cannot  hesitate  to  apply  them  In  this  case, 
though  there  Is  reason  to  fear  that,  by  their  application  la  this  in- 
stance, a  guilty  man  escapes  punishment.  But  however  strong  may  be 
our  belief  of  defendant's  guilt,  we  cannot  overturn  the  law  to  sustain 
hi^  conviction.  By  so  doing,  justice  would  be  more  gravely  offended 
than  by  his  escape  from  punishment,  by  the  failure  of  the  prosecu- 
tion to  produce  legal  evidence  that  an  offense  had  been  committed." 

In  Williams  v.  People,  101  111.  382,  the  court  adhered  to  this  doc- 
trine, saying:  "This  rule  Is  fully  recognized  by  the  ablest  text-writers 
of  the  day  and  the  general  current  of  authority." 

Confessions  ichich  are  vague  should  be  refused. — This  applies  with 
special  force  to  those  made  through  an  interpreter  whose  knowledge 
of  the  foreign  language  Is  Imperfect.  Serpentine  v.  State,  1  How. 
(Miss.)    256. 

Treatment  of  the  prisoner  while  vndcr  arrest. — It  Is  a  common  oc- 
currence, in  larse  cities,  when  a  person  Is  arrested  for  some  offense, 
where  the  evidence  is  not  clear  and  manifest,  to  detain  him  for  hours, 
and  it  may  be  for  days.  In  a  police  station  before  bringing  him  to  a 
magistrate.  This  is  indulged  in  for  the  purpose  of  working  up  the 
case,  or,  in  other  words,  obtaining  a  confession.  Both  at  common 
law  and  by  the  statutes  of  many,  if  not  all,  of  the  States  in  this  coun- 
try, it  is  the  duty  of  an  officer  to  take  a  prisoner  to  a  magistrate  im- 
mediately; and  it  is  for  the  magistrate  to  determine  what  continuance, 
If  any,  shall  be  allowed.  Sir  Matthew  Hale  said:  "When  the  officer 
or  minister  has  made  his  arrest,  he  Is  forthwith  to  bring  the  parties 
to  the  gaol,  or  to  the  justice,  according  to  the  import  of  the  warrant. 
But  if  the  time  be  unseasonable,  as  in  or  near  the  night,  whereby  lie 
cannot  attend  the  justice,  or  if  there  he  danger  of  a  present  rescue, 
or  if  the  party  be  sick  and  not  able  at  present  to  be  brought,  he  may, 
as  the  case  shall  require,  secure  him  in  the  stocks,  or  in  case  the  qual- 
ity of  the  person  or  the  indisposition  so  require,  secure  him  in  a 
house  till  the  next  day,  or  such  time  as  it  may  be  reasonable  to  bring 
him."     2  Hale,  Pleas  of  the  Crown,  Hi), 

Section  7,  division  6,  of  the  Illinois  Criminal  Code,  provides  as  fol- 


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29:1 


AMERICAN  CRIMINAL  REPORTS. 


lows:  "When  an  arrest  is  made  without  a  warrant,  either  by  an  offl- 
rer  or  private  person,  the  person  arrested  shall,  without  unni'ci'ssary 
delay,  be  taken  before  the  nearest  maRlstrate  In  the  county,  who  shall 
hear  the  case,  for  examination,  and  the  prisoner  shall  be  examined 
and  dealt  with  as  In  cases  of  arrests  upon  warrants,"  NotwIthstandlnR 
the  provisions  of  this  statute,  it  is  but  usual  for  ChlcaKO  police  to  im- 
prison persons  for  days  before  bringing  them  before  a  magistrate, 
during  which  time  the  arts  and  tricks  of  detectives  are  skilfully  ap- 
plied. Any  confession  obtained  under  such  circumstances  should  be 
presumed  to  be  involuntary.  The  same  doctrine  should  apply  to  all 
other  States  where  the  common  law  or  similar  statutes  are  in  force. 

The  case  of  Wrif/ht  v.  Court  et  al.,  6  Dowl.  &  Ry.  623,  heard  in  1825, 
is  a  leading  case  upon  this  subject.  It  was  a  suit  for  false  imprison- 
ment, it  being  averred  In  the  declaration  that  the  plaintiff  was  im- 
prisoned on  a  false  charge  of  felony  for  three  days  by  the  defendants, 
who  then  handcuffed  him  and  took  him  before  a  magistrate  and  there 
Imprisoned  him  again  for  twelve  hours.  A  plea  of  not  guilty  and  also 
special  pleas  were  filed  to  the  declaration.  By  the  special  pleas  It 
was  contended  that  a  felony  had  been  committed  on  the  premises  of 
one  Clarke.  Plaintiff  being  suspected  of  being  concerned  In  the  felony 
was  arrested,  and  that  the  defendant  Court,  being  a  constable,  the 
other  defendants  assisting,  imprisoned  the  plaintiff  for  the  space  of 
time  alleged,  in  order  to  carry  him  before  a  magistrate,  the  same 
being  reasonable,  for  the  purpose  of  informing  Clarke  of  the  arrest, 
etc.,  and  enabling  Clarke  to  procure  necessary  evidence  and  witnesses 
for  the  prosecution;  and  that  they  handcuffed  the  plaintiff  in  order  to 
prevent  his  escape,  etc.  Upon  demurrers  to  the  special  pleas  the  court 
gave  the  following  opinion: 

Bailey,  J,  "It  is  difficult  to  imagine  any  circumstances  under  which 
the  conduct  of  these  defendants  couk'  be  justifiable  in  point  of  law, 
but  at  all  events  the  circumstances  set  out  In  this  record  are  wholly 
Inadequate  to  furnish  them  with  any  justification.  The  plaintiff  al- 
leges that  he  was  first  Imprisoned  for  three  days,  and  the  defendants 
by  their  first  special  plea  admit  that  he  was  imprisoned  for  that  space 
of  time  before  he  was  taken  to  a  magistrate  for  examination,  and 
aver  that  it  was  a  reasonable  time  for  that  purpose,  and  for  the  pur- 
pose of  enabling  Clarke  to  collect  and  bring  forward  evidence  in  sup- 
port of  the  charge  of  felony.  In  the  first  place,  it  was  a  most  unrea- 
sonable time  for  any  purpose,  and  in  the  second  place,  the  latter  pur- 
pose was  perfectly  Illegal.  It  is  the  duty  of  every  person  who  arrests 
another  on  suspicion  of  felony,  to  take  him  before  a  magistrate  as 
soon  as  he  reasonably  can  (Com.  Dig.,  Imprisonment,  H.  4);  and  even 
a  magistrate  is  not  authorized  by  law,  and  much  less  a  constable, 
therefore,  to  detain  a  person  so  arrested,  except  for  a  reasonable  time, 
and  except  for  the  purpose  of  his  being  examined.  Com.  Dig.,  Im- 
prisonment, H.  5.  The  magistrate  might  have  been  justified  in  order- 
ing the  plaintiff  to  be  detained  until  Clarke  could  bring  forward  his 
evidence,  but  without  his  order,  the  defendants  could  not  possibly  be 
justified  in  detaining  him  for  any  such  purpose.  The  defendants  have 
also  justified  the  handcufilng  the  plaintiff  in  order  to  prevent  his  es- 


STATE  I'.  KINO. 


205 


cape;  but  they  have  not  averre'1  that  it  was  necessary  for  that  pur- 
pose, or  that  he  had  attempted  to  escape,  or  that  there  was  any  danger 
of  his  escaping;  and  such  a  degree  of  violence  and  restraint  upon  the 
person  cannot  be  Justified  even  by  a  constable,  unless  he  makes  It  ap- 
|)car  that  there  are  good  special  reasons  for  his  resorting  to  It.  For 
these  reasons  the  special  pleas  are  dearly  Insufficient,  and  the  plaint- 
iff is  entitled  to  our  Judgment."  Holroyd,  J.,  and  Llttledale,  J.,  con- 
curred.   Judgment  for  the  plaintiff. 


State  v.  Kino. 

104  Iowa,  727—74  N.  W.  Rep.  C91. 

Decided  April  6,  1898. 

Conspiracy:   Ingredients  —  Approval  distinguiahed  from  participation. 

1.  A  conspiracy  implies  a  combination  of  two  or  more  persons  to  ac- 

complish an  unlawful  purpose  of  some  l<ind;  and  contemplates 
the  union  of  the  energy  of  its  different  members  to  effectuate  its 
purposes. 

2.  There  must  be  proof  of  concert  of  action,  understanding  or  agree- 

ment among  its  members. 

3.  The  mere  knowledge,  acquiescence  or  approval  of  an  act,  without 

cooperation  or  agreement  to  co-operate,  is  not  enough  to  consti- 
tute the  crime  of  conspiracy. 

4.  Where  defendant,  among  a  number  of  persons,  expressed  satisfac- 

tion at  the  threat  of  another  to  punish  a  common  enemy  of  theirs, 
who  had  assaulted  him,  and  said  that  the  assailant's  fine  would 
be  paid,  yet  subsequently  advised  the  assailant  not  to  Injure  the 
person,  and  after  the  assault  he  referred  to  the  Injured  party's  as- 
sault upon  himself,  and  said  that  he  would  pay  the  fine,  held,  that 
this  did  not  render  the  defendant  guilty  of  conspiracy  to  commit 
the  assault.  . 

Charles  L.  l^ing,  convictod  of  conspiracy,  in  the  District 
Court  of  Euelianan  County,  before  A.  S.  Blair,  Judge,  ap})eals. 
Reversed. 

Xo  arguments 

Ladd,  J.  The  indictment  charged  the  defendant  and  one 
Do  "Wald  with  the  crime  of  conspiring  and  confederating  to- 
gether with  malicious  intent  wrongfully  to  injure  the  person  of 
J.  II.  Willey,  and  that  they  did,  in  pursuance  thereof,  inflict 
on  him  great  bodily  injury.    It  appears  that  just  after  noon  of 


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AMERICAN  CRIMINAL  REPORTS. 


^ii#  if 


Scptoiiibor  22,  1S9G,  De  Wakl  met  Willey  near  Littoirs  store, 
iu  Iiulcpeiidcnce,  knocked  him  down,  and  so  beat  liim  that  lie 
■was  unconscious  for  several  days.  King  did  not  t(nieh  AVilloy, 
but  the  theory  of  the  State  at  the  trial  was  that  the  assault  and 
battery  Avas  the  result  of  a  criminal  conspiracy  between  liini 
and  De  AVald.  The  evidence  shows  that  llayniond,  De  Wald, 
King,  and  othevs  were  in  Keisnor's  saloon,  llayniond  asked 
IC^ing  about  the  s  'ur  on  his  nose,  and  the  latter  responded  that 
Willey  had  struck  him  with  his  cane.  De  AVald  then  remarked 
lie  had  a  grievance  against  Willey,  and  intended  to  whip  him 
at  the  first  opportunity;  that  Willey  had  published  an  article 
in  his  paper  to  the  effect  that,  if  his  (De  Wald's)  circulation 
was  cut  short,  it  would  be  a  good  thing  for  the  community. 
Something  was  then  said  about  the  payment  of  the  fine,  and 
King  stated  that,  if  he  licked  Willey,  his  fine  would  be  paid, 
and  related  that  Farwell,  a  partner  of  Willey,  had  said  ho 
Avould  pay  it,  if  some  one  wouhl  whip  him.  This  state  of  facts 
is  testified  to  l)y  Raymond,  De  Wald,  and  King,  but  ^hillick 
says  King  told  De  Wald  that  he  would  pay  his  fine.  Tliis  wit- 
ness, however,  is  unable  to  recall  anything  else  in  the  conversa- 
tion. De  Wald  and  King  are  uncontradicted  in  the  statenuMit 
that  the  former  answered  that  he  did  not  want  anvbodv  to  pay 
his  fine.  De  Wald  repeated  that  he  would  punch  Willey  in  the 
face,  and  whip  him  in  good  shape.  Both  Kaymond  and  King 
advised  him  not  to  punch  or  kick  Willey,  but  that  ho  might  as 
well  slap  his  mouth,  or  something  of  that  kind.  De  Walil, 
after  leaving  the  saloon,  said  to  several  that  ho  was  going  to 
whip  Willey,  and  that  llaymond  and  King  were  to  pay  the  fine. 
King  left  the  saloon,  and  was  on  his  way  to  order  a  team  at  the 
livery-stable,  with  which  to  take  a  political  orator  to  Winthrop, 
when  he  saw  people  gathering  as  ho  approached.  One  Ta])per 
called  to  De  Wald  not  to  strike  a  man  when  he  was  down,  and 
King  replied  to  this  remark,  *'Xo  interfering,"  and  spoke  of 
Willey's  assault  on  him,  and  mentioned  the  fact  that  he  was  a 
cri])ple.  We  have  set  out  this  evidence  with  particularity,  be- 
cause of  the  ruling  on  tlie  motion  to  direct  a  verdict  for  defend- 
ant at  the  conclusion  of  the  State's  evidence,  and  also  after 
both  parties  had  rested.  The  evidence  does  not  establish  the 
conclusion  that  the  defendant  was  guilty  of  the  offense  charged. 


STATE  V.  KING. 


207 


The  usual  definition  of  "conspiraey"  is  "a  combination  of  two 
or  more  persons  by  concerted  action  to  acconi])lish  a  criminal 
or  unlawful  purpose, *or  some  purpose  not  in  itself  criminal  by 
criminal  or  unlawful  means."  2  ^IcClain,  Crim.  Law,  O.jO; 
2  Bisliop,  Crim.  Law,  592 ;  State  v.  Jones,  13  Iowa,  2(59 ;  Stale 
V.  Potter,  28  Iowa,  554;  State  v.  Stevens,  30  Iowa,  391;  Codo, 
sec.  5050.  There  is  no  proof  of  any  concert  of  action,  or  of  any 
imdcrstanding  or  agreement  therefor.  The  mere  knowledge, 
acquiescence,  or  approval  of  an  act,  without  co-operation  or 
agreement  to  co-operate,  is  not  enough  to  constitute  the  crime 
of  conspiracy.  2  ^[cClain,  Crim.  Law,  9G8 ;  Evans  v.  People, 
90  111.  384;  Miles  v.  State,  58  Ala.  300;  2  Bishop,  Crim.  Law, 
181,  183;  State  v.  Cox,  G5  Mo.  20;  2  Wharton,  Crim.  Law, 
1341.  The  combination  must  contemplate  the  accomplishment 
of  the  pui'pose  by  the  iinited  energy  of  the  acciised,  or  active 
])articipation  must  be  shown.  The  testimony,  at  uxost,  shows 
King  not  superior  to  the  ordinary  instincts  of  human  nature. 
He  was  smarting  under  an  assault  from  Willey,  and  was  willing 
the  latter  should  be  humiliated  by  a  stroke  on  the  mouth  from 
the  palm  of  the  hand ;  but  he  entered  into  no  arrangement  that 
this  should  be  done,  and  suggested  it  only,  instead  of  the  Ijoat- 
iug  De  Wald  was  insisting  he  would  indict.  Ilis  suggestion 
was  not  acted  upon.  King  neither  agreed  to  do  nor  did  any- 
thing to  aid  in  carrying  out  the  unlawful  purpose  of  De  AVald. 
The  payment  of  the  fine,  if  promised,  as  stated,  by  Mullick, 
constituted  no  part  of  the  offense.  The  statement  was  made  to 
Tapper  j\ist  as  Do  Wald  withdrew  from  beating  Willey,  and 
indicated  his  satisfaction  with  what  was  done,  rather  than  any 
intention  of  affording  aid  or  comfort.  It  was  not  made  until 
the  encounter  was  ended.  The  court,  in  the  twelfth  instruc- 
tion, correctly  stated  the  law,  in  language  which  ought  not  to 
have  beeu  misunderstood.  After  cavitioning  the  jurors  not  to 
confuse  the  crime  charged  with  that  of  assault  and  battery,  or 
one  of  a  similar  nature,  they  are  told  not  to  convict  the  defend- 
ant unless  "he  agreed  to  participate  in  the  commission  of  such 
offense  in  concert  and  combination  with  the  said  Bert  Do 
Wald,  or  that  he  aided  in  it  by  advising  and  counseling  the  act, 
and  promising  De  Wald  immunity  from  punishment  therefor, 
and  iu  any  manner  aided  in  its  connnission  at  the  time  and 


f 

I 
■I 

'I 

;(■■' 

1 


;l?^ 


m 


29S 


AMERICAN  CRIMINAL  REPORTS. 


place  ■\vliere  it  was  committed.  A  mere  passive  cognizance  or 
consent  to  an  illegal  act  or  commission  of  an  unlawful  offense 
is  not  sufficient  to  sustain  the  charge  of  conspiracy."  Under 
the  evidence  and  the  law  as  given  in  this  instruction  the  de- 
fendant was  entitled  to  an  acquittal.    Reversed. 


iV   1 


P,'V> 


,^."1    ■-? 


Herdman  v.  State. 

54  Neb.  626—74  N.  W.  Rep.  1097. 

Filed  April  21,  1898. 
Contempt:    Procedure — Affidavit. 

1.  A  proceeding  against  a  party  for  contempt  is  in  the  nature  of  a 

prosecution  for  a  crime,  and  the  rules  of  strict  construction  ap- 
plicable in  criminal  proceedings  are  governable  therein. 

2.  The  affidavit  must  state  the  acts  of  the  asserted  contempt  with  as 

much  certainty  as  is  required  in  a  statement  of  an  offense  in  a 
prosecution  for  a  crime. 

3.  The  statements  must  be  as  of  the  personal  knowledge  of  the  af- 

fiant.   They  may  not  be  on  information  and  belief. 

4.  The  affidavit  in  such  a  proceeding  is  Jurisdictional. 

Error  to  the  District  Court  for  Douglas  County ;  Hon.  C.  R. 
Scott,  Judge.    Reversed. 

Gvy  B.  C.  Read  and  Willmm  F.  Gurley,  for  the  plaintiff  in 
error. 

C.  J.  Smyth,  Atty.  Gen.,  and  Ed.  P.  Smith,  Deputy  Atty., 
for  the  State. 

IIarrison^,  C.  J.  By  a  petition  in  error  a  review  is  sought 
of  a  judgment  of  the  district  court  of  Douglas  county  wherohy 
the  plaintiff  in  error  was  adjudged  giiilty  of  a  contempt  of 
court  and  to  Ire  punished  therefor.  The  affidavit  filed  in  the 
district  court,  the  basis  of  the  proceedings  there,  was  as  follows: 

"William  W.  Cox,  Plaintiff, 

V. 
Board  of  Fire  and  Police  Commissioners, 

Frank  E.  Moores  et  al..  Defendants. 
State  of  Nebraska,  ) 

Douglas  County.      ) 

"R.  II.  Olmsted,  being  duly  sworn,  deposes  and  says  he  is 
one  of  the  attorneys  for  the  plaintiff  in  the  above  entitled  ac- 


)■  Doc.  GO.     No.  313. 


RS. 


HERDMAN  v.  STATE. 


299 


m 


'Vi 
9 


l. 


tion,  and  comes  now  and  represents  to  the  court  that  the  re- 
straining order  issued  herein  on  July  IG,  1897,  has  been  vio- 
lated by  the  defendant  E.  E.  L.  Herdman  in  this,  to  wit :  That 
on  September  29,  1897,  the  said  Ilerdman,  as  a  member  of  the 
board  of  fire  and  police  commissioners  of  the  city  of  Omaha, 
Xebraska,  did,  as  affiant  is  informed  and  believes,  vote  'yes'  at 
a  meeting  of  said  board  on  a  resolution  then  adopted  by  said 
board  removing  plaintiff  herein  from  the  police  department  of 
the  city  of  Omaha;  that  thereafter,  on  the  1st  day  of  October, 
1897,  at  a  special  meeting  of  said  board,  the  following  proceed- 
ings were  had,  and  the  following  is  a  copy  of  the  journal  of 
said  board  showing  a  record  of  the  proceedings  then  and  there 
had : 

"  *  Cm  uiA,  Xeb.,  October  1,  1897. 

"  '  The  board  met  pursuant  to  call.  Present,  Commissioner 
Gregory  in  the  chair,  and  Commissioners  Peabody,  Bullard, 
aiul  Ilerdman;  absent.  Commissioner  ^loores. 

"  '  The  secretary  presented  a  connnunication  from  the  chief 
of  police  addressed  to  Hon.  C.  P.  Scott,  with  the  reply  of  his 
honor  thereto  attached,  and  reading  as  follows : 

"  '  "  Hon.  C.  R.  Scott,  Jud(je  District  Court,  Omaha,  Neb. — 
Dear  Sir:  I  have  the  honor  to  inclose  herewith  a  resolution 
adopted  by  the  board  of  fire  and  police  commissioners  at  the 
meeting  of  that  body  held  last  night.  It  was  the  sense  of  the 
board  and  also  my  personal  opinion,  that,  in  so  far  as  the  said 
resolution  affected  Chief  of  Detectives  W.  W.  Cox,  your  atten- 
tion should  be  called  to  it,  as  the  board  and  myself  desire  to  bo 
guided  by  both  the  letter  and  spirit  of  the  restraining  order 
iimdo  by  your  honor  in  the  matter  of  W.  W.  Cox  v.  The  Board 
of  Fire  and  Police  Conuuissioners. 

"• '  "  I  am  sure  that  the  form  of  my  communication  to  your 
honor  is  strictly  in  accordance  with  legal  practice  in  such 
cases ;  but  I  simply  seek  to  convey  to  your  honor  the  meaning 
and  intention  of  the  board  touching  the  matters  mentioned 
herein,  and  we  would  be  glad  to  be  guided  by  such  advice  and 
instructions  as  you  may  deem  consistent  to  give  in  the  pi'omises. 
"  *  "  Very  respectfully  yours, 

«  '  "  C.  V.  Gallaoiieh,  Chief  of  Police." 


B. 


m 


300 


AMERICAN  CKIMINAL  REPORXa 


i    .. 


"'"Reply: 

"  '  "  Chief  Gallagher:  Yoii  are  notified  that  the  action  of 
the  board  of  fire  and  police  commissioners  resjiecting  the  dis- 
charge of  Chief  of  Detectives  Cox,  in  discharging  him  from 
the  service,  is  in  direct  conflct  "with  the  restraining  order  issued 
by  me,  and  should  be  rescinded  at  once.  Until  the  case  is  heard 
no  such  action  should  be  taken  by  the  board. 

"  '  "  (Signed)       Cuxxixgiiam  R.  Scott,  Judge. 
"'"Omaha,  Sept.  30,  1S97." 

"  '  On  motion,  the  communications  were  ordered  spread  upon 
the  record  and  placed  on  file,  and  the  following  resolution  was 
passed.  Commissioners  Peabody,  Gregory,  and  Bullard  vot- 
ing in  the  aflirmative,  Commissioner  Ilerdman  in  the  negative : 

" '  Resolved,  That  the  order  removing  certain  ofiicers  and 
patrolmen,  passed  September  29th,  be,  and  is  hereby,  modified 
in  so  far  as  it  relates  to  one  W.  W.  Cox,  and  it  is  ordered  that 
as  to  him  the  said  order  be,  and  is  hereby,  rescinded. 

"  '  On  motion,  the  board  then  adjourned. 

"  '  Secretary.' 

"Afiiant  further  says  that  hfe  is  informed  and  believes  that 
the  said  R.  E.  L.  Ilerdman  is  the  secretary  of  the  said  board  of 
fire  11  r  '  police  commissioners,  and  was  the  person  who,  as  sec- 
retary, i)resented  the  first  two  aforesaid  communications  to  the 
said  board  at  its  meeting  held  October  1,  1897. 

"Affiant  further  says  that  the  aforesaid  proceedings  of  the 
said  board  of  October  1,  1897,  have  been  personally  examined 
by  him  and  the  foregoing  are  true  copies  thereof  as  appears  in 
Journal  F  at  pages  148  and  149  of  the  records  of  said  board. 
And  further  affiant  saith  not. 

"  R.  II.  Olmsted. 

"  Subscribed  and  sworn  to  before  me  this  4th  day  of  October, 
1897. 

"(Seal.)  Frank  L.  McCoy, 

"  N"otary  Public. 
"  My  commission  expires  January  22,  1899." 

That  this  was  insufficient  was  raised  during  the  proceedings 
and  is  presented  by  the  petition  in  error  and  is  one  of  the  points 
urged  in  the  brief  filed  for  plaintiff  in  error.  It  is  the  doc- 
trine of  this  court  that  proceedings  for  constinictive  contempt 


HERDMAN  v.  STATE. 


301 


arc  in  tlie  nature  of  prosecutions  for  crimes,  and  as  much  cer- 
tainty is  required  in  a  statement  of  acts  of  which  complaint  is 
made  as  in  the  statements  of  offenses  in  prosecutions  under  the 
provisions  of  the  Criminal  Code.  Ganihj  v.  Stale,  13  Nch. 
4-15;  Boyd  v.  Stale,  19  Xeh.  128;  Johnson  v.  Bouton,  'J5  Neh. 
903;  Percival  v.  State,  45  Xeh.  741;  llawcs  v.  State,  40  Xeh. 
140;  Cootcy  v.  State,  40  Xeh.  003;  O'Chaiidcr  v.  Stale,  40 
Xcb.  10.  The  affidavit  in  such  a  proceeding  is  jurisdictional. 
(liindij  V.  State,  13  Xeh.  445 ;  Liidden  v.  State,  31  Xeh.  437 ; 
Ilatrthorne  v.  State,  45  Xeh.  871.  The  affidavit  must  state 
positive  knowledge;  if  on  information  and  belief,  it  is  insuffi- 
cient. Luddcn  v.  State,  supra;  4  Ency.  Ph  &  Pr.  770,  780; 
Gandy  v.  State,  supra;  Freeman  v.  City  of  Huron  (S.  Dak.), 
CO  X.  W.  Rep.  928;  Thomas  v.  People  (Colo.),  23  Pac.  Rej). 
320.  Viewed  in  the  light  of  these  well  estahlished  riiles,  the 
affidavit,  the  basis  of  the  proceeding  against  plaintiff  in  error, 
was  wholly  insufficient.  Some  of  its  most  important  state- 
niciits  were  on  information  and  belief.  Thee  is  no  statement 
of  the  substance,  or  any  of  the  terms,  of  the  order  of  which  it 
is  asserted  there  had  been  a  violation,  nor  is  there  any  state- 
nu'jit  that  the  party  to  be  cited  for  contempt  in  its  violation  had 
any  notice  of  its  making  or  existence ;  in  short,  the  affidavit  was 
so  lacking  in  requisite  statements  of  substance  as  to  be  fatally 
(k>t"ective.  It  follows  that  the  judgment  must  be  reversed  and 
tlie  prosecution  dismissed.     Reversed. 


•,'■ 


Hm 


XouvAL,  J.  I  concur  in  reversal  of  the  judgment  on  the 
grounds  that  the  evidence  adduced  on  the  trial  is  insufficient 
to  sustain  the  judgment  and  sentence  imposed  by  the  district 
conrt. 

Notes  (by  J.  F.  G.). — While  the  general  reasoning  of  the  court,  as 
to  the  sufficiency  of  an  affidavit  that  can  be  made  the  basis  of  a  con- 
tempt proceeding,  is  correct,  the  case,  unless  controlled  by  statute,  is 
rather  that  of  civil  than  criminal  contempt.  (See  notes  to  Carter  v. 
Commonwealth,  in  present  volume,  p.  318.) 

The  affidavit,  being  made  by  an  attorney,  is  subject  to  additional 
criticism.  In  Spencer  v.  Kennard,  12  Tex.  180,  the  court  said:  "We 
trust  that  it  is  not  insisted  that  counsel  should  represent  their  clients 
in  making  affidavits.  Surely  this  is  not  believed  to  constitute  any  part 
of  the  duty  of  counsel  to  their  client.  The  ends  of  justice  sometimes 
make  it  necessary  that  an  attorney  should  give  evidence  for  his  client, 


1^1 


i 


J' 


8'1 

.,1 


i^Y^ 


L>    H  {u 


iil 

i 


302 


AMERICAN  CRIMINAL  REPORTS. 


but  It  should  always  be  regarded  by  counsel  as  a  misfortune  to  be 
(laced  in  a  such  a  position,  and  courts  should  extend  no  countenance 
tr  the  practice,  and  only  tolerate  It  in  cases  of  pressing  necessity. 
i3ee  also  Drach  v.  Cmnberg,  187  111.  385;  Rosa  v.  De  Los.  45  111.  447; 
Frear  v.  Drinker,  8  Pa.  St.  521.  It  has  been  held  that  when  an  attor- 
ney makes  an  affidavit  even  in  the  positive  form,  it  Is  to  be  presumed 
to  have  been  made  on  Information  and  belief.  (See  the  closing  por- 
tion of  the  notes  to  Lipjwian  v.  People,  in  the  present  volume,  p.  35G.) 

Affii^nvits  made  in  the  positii^e  form  uill  be  construed  to  have  been 
7).  <  hiformation  and  belief,  if  the  context  would  so  indicate. — This 

d  n'_  '"8  been  announced  in  Hart  v.  Grant,  8  S.  D.  248,  66  N.  W. 
Ffj  .?..  «ud  Finlay  et  al.  v.  De  Castroverde,  22  N.  Y.  S.  716,  in  each 
of  which  c;\ses  a  capias  in  a  civil  case  was  quashed  for  that  reason. 
!;    t*ie  latter  ( ase  the  court  said: 

"It  i.  irgei  ;>■  n  the  part  of  the  defendant  that  the  motion  to  va- 
cate the  order  o''  an  ,;t  should  have  been  granted,  because  many  of 
the  material  allegations  of  the  affidavit  upon  which  the  order  of  ar- 
rest was  founded  were  made  upon  information  and  belief,  and  do- 
rived  from  documents  which  were  not  produced,  and  that  the  alle- 
gations in  the  affidavit  are  simply  conclusions  derived  from  an  inspec- 
tion of  these  documents,  which  it  is  the  province  of  the  court  to  draw, 
and  not  o,  *he  affiant.  Upon  the  other  hand.  It  is  claimed  by  the  re- 
spondents that  the  affidavit  is  not  upon  information  and  belief,  nearly 
all  the  essential  facts  being  within  the  knowledge  of  the  affiant,  and 
stated  positively.  It  is  asserted  that  the  making  of  the  agreement, 
the  shipping  of  the  merchandise,  the  receipt  thereof  by  the  defendant, 
and  the  acknowledgment  of  such  receipt,  were  all  facts  within  the 
knowledge  of  the  plaintiff  who  made  the  affidavit.  Hojv  the  affiant,  at 
New  York,  had  personal  knowledge  of  the  receipt  of  these  goods  in 
Mexico,  it  is  somewhat  difficult  to  imagine.  It  may  be  that  he  believes 
they  were  received  because  he  believes  himself  to  have  been  informed 
by  a  letter  of  the  defendant  that  he  had  received  them,  but  he  clearly 
had  no  personal  knowledge  of  the  fact.  The  only  information  that  he 
claims  to  have  had  upon  that  point  is  the  letter  of  the  defendant  ac- 
knowledging its  receipt.  Now,  it  is  clear  that  If  he  was  testifying  upon 
the  stand  as  a  witness  with  respect  to  the  receipt  of  these  goods,  he 
could  not  be  he^ird  to  open  his  mouth  without  the  production  of  the 
letter,  or  accounting  for  its  loss.  Hence,  when  we  consider  the  differ- 
ence between  the  allegations  of  a  complaint  and  an  affidavit,  the  former 
being  allegations  of  fact,  to  be  supported  by  evidence  to  be  subsequently 
given,  if  not  admitted,  and  the  other  furnishing  the  evidence  to  the 
court  from  which  it  can  draw  its  own  conclusions.  It  is  apparent  that 
allegations  of  this  character,  without  the  production  of  the  proof,  have 
no  probative  force  whatever." 


ii 


J 
I  ' 


CARTER  V.  COMMONWEALTH.  808 


Carter  v.  Commonwealth. 

96  Va.  791—32  S.  E.  Rep.  780,  45  L.  R.  A.  310. 

Decided  March  16,  1899. 

Contempt:   Insufflcient  disclaimer — Jury  trial — Statute  void — hiherent 

power  of  courts. 

1.  It  Is  contempt  of  court  for  a  party  litigant,  when  notified  by  his 

counsel  to  attend  court  for  trial,  to  falsely  telegraph  to  his  coun- 
sel that  he  is  seriously  ill  and  cannot  attend. 

2.  A  mere  disclaimer  of  wrongful  intention  is  not  sufficient,  when  the 

improper  motive  is  manifest  from  the  act. 

3.  The  power  to  punish  for  contempt  of  court  is  a  vital,  necessary 

and  inherent  protective  function  of  the  court;  and,  while  it  may 
to  some  degree  be  regulated  by  statute,  the  legislature  has  no 
power  to  transfer  from  the  court  to  a  jury  the  right  to  determine 
the  matter  and  to  fix  the  penalty. 

Error  to  a  judgment  for  contempt  of  court  rendered  April 
14,  1898,  by  the  Circuit  Court  of  the  City  of  Lynchburg.  Af- 
firmed. 

E.  W.  Saunders  and  J.  E.  Edmunds,  for  the  plaintiff  in  error. 
A.  J.  Montague,  xYtty.  Gen.,  for  the  Commonwealth. 

IvEiTir,  P.  At  its  November  term,  1897,  the  circuit  court 
of  the  city  of  Lynchburg  issued  a  rule  against  Carter,  plaintiff 
in  error,  to  appear  before  it  on  the  first  day  of  the  next  term  to 
show  cause  why  he  should  not  be  fined  and  attached  for  con- 
tempt, by  attempting  to  obtain  a  continiiance  of  the  action  of 
Grubbs  against  Carter  by  means  of  false  telegrams.  In  answer 
to  this  rule,  he  appeared  and  stated  that  he  is  a  resident  of  the 
county  of  Nottoway,  and  that,  having  received  a  telegram  from 
his  attorney,  J.  Emory  Hughes,  that  his  case  was  pending,  and 
that  he  must  come  to  Lynchburg  on  the  next  train,  he  wired 
in  response,  "Sick  with  tj'phoid  fever,  and  can't  come;"  that 
this  statement  as  to  his  health  was  false,  and  made  without  due 
consideration;  that  he  had  no  idea  of  interfering  with  or  im- 
peding the  course  of  justice;  that  he  did  not  make  the  state- 
ment for  the  purpose  of  obtaining  a  continuance,  and  nothing 
was  f  irther  from  his  mind ;  that  no  disrespect  to  the  court  was 
intended ;  and  he  prays  that  his  fault  may  be  overlooked. 


! 


' 


?  ^ 


I. 


304 


AMERICAN  CRIMINAL  REPORTS. 


U  "•) 


I'l  .i   '. 


I' 


"When  the  matter  came  up  for  trial,  Carter  asked  to  Lo  tricil 
by  a  jury,  wliicli  motion  tlic  court  overruled,  and,  deeming  his 
answer  insufficient,  entered  a  judgment  against  him  for  a  fine 
of  $25  and  costs,  and  that  he  be  imprisoned  for  the  term  of 
two  days  in  the  jail  of  the  city  of  J.ynchburg,  and  afterwards, 
until  he  pays  his  fine  and  costs:  provided,  that  this  latter 
period  shall  not  exceed  two  months.  To  this  judgment,  Carter 
obtained  a  writ  of  error  from  one  of  the  judges  of  this  court, 
and  the  errors  assigned  by  him  are:  First,  that  upon  the  facts 
as  shown  in  the  record  he  was  not  guilty  of  a  contempt;  sec- 
ondly, that  the  court  erred  in  refusing  to'  have  a  jury  impanelcil 
for  his  triah 

We  are  of  opinion  that,  upon  the  facts  shown,  Carter  was 
guilty  of  a  contempt.  The  effort  to  obtain  a  continuance  of  his 
cause  by  means  of  a  statement  as  to  his  health,  which  he  knew 
to  be  false,  tended  directly  to  impede  and  obstruct  the  admin- 
istration of  justice.  It  is  true  that  with  respect  to  conduct  or 
language,  where  the  intent  with  which  a  thing  is  said  or  done 
gives  color  and  character  to  the  act  or  words,  a  disclaimer  of 
any  purpose  to  be  guilty  of  a  contempt,  or  to  destroy  or  impair 
the  authority  due  to  the  court,  is  a  good  defense  (Rapalje  on 
Contempt,  §  115)  ;  but  this  is  true  only  of  language  or  acts  of 
doubtful  import,  and  which  may  reasonably  bear  two  construc- 
tions. In  the  case  before  us  there  could  have  been  but  one  mo- 
tive, and  that  to  influence  the  action  of  the  court  with  respect 
to  a  case  before  it  by  means  of  a  statement  known  and  admitted 
to  be  false.  We  pass,  therefore,  to  the  consideration  of  the  next 
error  assigned.  This  presents  a  question  of  the  utmost  gravity, 
which  has  been  argued  with  the  ability  which  its  importance 
demands,  and  has  received  from  us  our  best  consideration. 

By  an  act  of  assembly  passed  in  1830-31  (see  Session  Acts, 
p.  48),  the  legislature  undertook  to  enumerate  and  to  classify 
contempts  of  court,  and  to  prescribe  the  manner  in  which  they 
should  be  punished.  This  act  appears  in  the  Code  of  1849  as 
sections  24  and  25,  ch.  194,  as  follows: 

"Sec.  24.  The  courts  and  the  judges,  and  justices  thereof, 
may  issue  attachments  for  contempts,  and  punish  them  sum- 
marily, only  in  the  cases  following: 


CARTER  V.  COMMONWEALTH. 


305 


"First,  misbehavior  in  the  presence  of  the  court,  or  so  near 
thereto  as  to  obstruct  or  interrupt  the  administration  of  jus- 
tice. 

"Secondly,  violence  or  threats  of  violence  to  a  judge,  justice 
or  officer  of  the  court,  or  to  a  juror,  witness  or  party  going  to, 
attending,  or  returning  from,  the  court,  for  or  in  respect  of 
any  act  or  proceeding  had,  or  to  be  had,  in  such  court. 

"Thirdly,  misbehavior  of  an  officer  of  the  court,  in  his  offi- 
cial character. 

"Fourthly,  disobedience  or  resistance  of  an  officer  of  the 
court,  juror,  witness  or  other  person,  to  any  lawful  process, 
judgment,  decree  or  order  of  the  said  court. 

"Sec.  25.  Xo  court  shall,  Avithout  a  jury,  for  any  such  con- 
tempt as  is  mentioned  impose  a  fine  exceeding  fifty  dollars,  or 
imprison  more  than  ten  days.  But  in  any  such  case  the  court 
may  impanel  a  jury  (without  an  indictment,  information  or 
any  formal  pleading)  to  ascertain  the  fine  or  imprisonment 
proper  to  be  inflicted,  and  may  give  judgment  according  to  the 
verdict." 

This  act  was  continued  in  force,  without  amendment,  until 
the  session  of  1807-98,  p.  548,  when  it  was  amended  so  as  to 
read  as  follows: 

"1.  Be  it  enacted  by  the  general  assembly  of  Virginia,  that 
section  three  thousand  seven  hundred  and  sixty-eight  of  the 
Code  of  Virginia  be  amended  and  re-enacted  so  as  to  read  as 
follows : 

"Sec.  3768.  The  courts  and  judges  may  issue  attachments 
for  contempt,  and  punish  them  summarily,  only  in  the  follow- 
ing cases,  which  are  hereby  declared  to  be  direct  contempts,  all 
other  contempts  being  indirect  contempts. 

"First.  Misbehavior  in  the  presence  of  the  court,  or  so  near 
thereto  as  to  obstruct  the  administration  of  justice. 

"Second.  Violence  or  threats  of  violence  to  a  judge  or  of- 
ficer of  the  court  or  to  a  jiiror,  witness  or  party  going  to,  at- 
tending or  returning  from  the  court,  for  or  in  respect  of  any 
act  or  proceeding  had  or  to  be  had  in  such  court. 

"Third.  Misbehavior  of  an  officer  of  the  court  in  his  official 
character. 

VouXI-20 


■4 
I 

i 

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c 


1: 


y 


m 


i.ii 


&m 


yarn 

Mi 


a  I 


3(»0 


AMERICAN  CRIMINAL  REPORTS. 


"Fourtli.  DisoLodicnce  or  resistance  of  an  officer  of  the  court, 
juror  or  witness  to  any  lawful  process,  judgment,  decree  or 
order  of  tlie  said  court. 

''When  tlie  court  adjudges  a  party  guilty  of  a  direct  con- 
tempt it  sliull  make  an  entry  of  record,  in  which  shall  be  speci- 
fied the  conduct  constituting  such  contempt  and  shall  certify 
the  mutter  (tf  extenuation  or  defense  set  up  by  the  accused,  and 
the  evidence  submitted  by  him  and  the  sentence  of  the  court. 

"SUBSKCTION. 

"Proceedings  in  Cases  of  Indirect  Contempt.  Upon  the  re- 
turn of  an  officer  on  process,  or  upon  an  affidavit  duly  filed, 
showing  any  person  guilty  of  indirect  contemi>t,  a  writ  of  at- 
tachment or  other  lawful  process  may  issue,  and  such  person 
may  be  arrested  and  brought  before  the  court,  and  thereupon 
a  written  accusation,  setting  forth  succinctly  and  clearly  the 
facts  alleged  to  constitute  such  contempt,  shall  be  filed,  and  the 
accused  required  to  answer  the  same,  by  an  order  which  shall 
fix  the  time  therefor  and  also  the  time  and  place  for  hearing  the 
matter.  A  copy  of  this  order  shall  be  served  upon  the  accused, 
and  upon  a  proper  showing  the  court  may  extend  the  time  so 
as  to  give  the  accused  a  reasonable  opportunity  to  purge  himself 
of  such  contempt. 

"After  the  answer  of  the  accused,  or  if  he  fail  or  refuse  to 
answer,  the  court  may  proceed  at  the  time  so  fixed  to  hear  and 
determine  such  accusation  upon  such  testimony  as  shall  be  pro- 
duced. If  the  accused  answer,  the  trial  shall  proceed  aceoi'ding 
to  the  rules  governing  the  trial  of  criminal  cases,  and  the  ac- 
cused shall  be  entitled  to  compulsory  process  for  his  Vv'itnesses 
and  to  be  confronted  with  the  witnesses  against  him. 

"Such  trial  shall  be  by  the  court,  or,  upon  the  application  of 
the  accused,  a  trial  by  a  jury  shall  be  had,  as  in  any  case  of  a 
misdemeanor. 

"If  the  jury  find  the  accused  guilty  of  contempt  they  shall 
fix  the  amount  of  his  punishment  by  their  verdict. 

"The  testimony  taken  on  the  trial  of  any  case  of  contempt 
shall  be  preserved  on  motion  of  the  accused,  and  any  judgment 
of  conviction  therefor  may  be  reviewed  on  writ  of  error  from  the 
circuit  court  having  jurisdiction,  if  the  judgment  is  by  a  county 


is 

Mi 


CARTER  V.  COMMONWEALTH. 


80< 


1k4 


(vnirt,  or  on  writ  of  error  from  the  supreme  euurt  of  ai)poal:^, 
if  the  judgment  is  by  a  circuit  or  corporation  court.  In  the 
appellate  court  the  judgment  of  the  trial  court  shall  be  affirmed, 
reversed,  or  modified  as  justice  may  require.  If  the  writ  of 
error  to  the  judgment  of  a  county  court  is  refused  by  the  circuit 
court  having  jurisdiction,  application  may  then  bo  made  to  the 
court  of  appeals.' 

"2.  All  acts  and  parts  of  acts,  so  far  as  they  conflict  with 
this  act,  are,  to  that  extent,  hereby  repealed." 

I'eing  of  opjnion  that  the  defendant  was  guilty  of  contempt, 
we  sluill  not  attempt  any  classification  of  it  as  a  direct  or  indi- 
rect contempt.  If  it  were  a  direct  contempt,  then  its  punisli- 
nicnt  was  Avithout  doubt  to  be  ascertained  and  fixed  by  the 
court,  without  the  intervention  of  a  jury,  by  the  terms  of  the 
law  which  the  plaintiff  in  error  himself  invokes.  If  it  were 
a  contempt  not  within  that  classification,  then  it  is  incumbent 
upon  us  to  consider  whether  it  was  within  the  power  of  the 
legislature  to  deprive  the  court  of  jurisdiction  to  punish  it 
.vithout  the  intervention  of  a  jury. 

Counsel  for  plaintiff  in  error  insist  that  the  question  has 
alreaily  been  decided  by  this  court  in  the  case  of  Commonwealth 
V.  DcsJilnSj  4  Leigh,  G85,  and  again  in  Wells  v.  Commonweallh, 
21  Grat.  500. 

The  latter  ease  may  be  disposed  of  by  the  statement  that  this 
court  reversed  the  judgment  of  the  circuit  court  upon  the  facts, 
and  held  that  the  acts  proved  against  Wells  did  not  constitute 
a  contempt  of  court. 

With  respect  to  the  case  of  Desk'ins  v.  Commonwealth,  it  ap- 
pears that  it  arose  and  was  decided  under  the  constitution  of 
]  829-30.  In  the  fifth  article  of  that  instrument  it  is  provided 
that  ''the  judicial  power  shall  be  vested  in  a  supreme  court  of 
appeals,  in  such  superior  courts  as  the  legislature  may  from 
time  to  time  ordain  and  establish,  and  the  judges  thereof,  in 
the  county  courts,  and  in  justices  of  the  peace.  The  legis- 
lature may  also  vest  such  jurisdiction  as  shall  be  deemed  neces- 
sary in  corporation  courts,  and  in  the  magistrates  who  may  be- 
long to  the  corporate  body.  The  jurisdiction  of  these  tribu- 
nals, and  of  the  judges  thereof,  shall  be  regulated  by  law." 

The  constitution  did  not  create  the  courts  nor  clothe  them 


p. 


m 


■■^i^lil 


n 


IS     ( 


1^    ! 


I 


f.'l' 


il 


I 


808 


AMERICAN  CRIMINAL  REPORTS. 


whh  jurigdiction,  but  tlio  courts  tliomselves  were  established  by 
the  Icgishitiiro,  aiul  their  jurisdiction  was  roguhitcd  by  law. 
In  this  respect  the  constitution  of  1820-^0  was  only  less  gen- 
eral in  its  terms  than  the  first  organic  instrument  ailnptid  in 
177G. 

The  constitution  of  ISTil  (art.  VI,  §  1),  with  respect  to  the 
judiciary  departntent,  i)rovi(les:  "There  shall  be  u  supreuie 
court  of  appeals,  district  courts,  and  circuit  courts.  The  ju- 
risdiction of  these  tribunals,  and  of  the  judges  thereof,  except 
so  far  as  the  same  is  conferred  by  this  constitution,  shall  be 
regulated  by  law." 

Art.  VJ,  sec.  1,  of  the  constitution  now  in  force  ])rt)vides: 
"There  shall  be  a  suprenu>  court  of  appeals,  circuit  court 
and  county  courts.  The  jurisdiction  of  these  trib\inals,  an 
of  the  judges  thereof,  except  so  far  as  the  same  is  conferred  by 
this  constitution,  shall  be  regulated  by  law."  In  a  subsequent 
portion  of  the  instrument,  corporation  courts  are  also  provided 
for  the  cities  of  the  State.  These  courts  do  not  derive  their 
existence  from  the  legislature.  They  are  called  into  being  by 
the  constitution  itself,  the  same  authority  which  creates  the 
legislature  and  the  whole  framework  of  State  government. 

What  was  the  nature  and  character  of  the  tribuuals  thus  in- 
stituted ?  Our  conception  of  courts,  and  of  their  powers  and 
functions,  comes  to  us  through  that  great  system  of  English 
jurisprudence  known  as  the  "connnon  law,"  which  we  have 
adopted  and  incor])orated  into  the  body  of  our  laws. 

That  the  English  courts  have  exercised  the  power  in  question 
from  the  remotest  period  does  not  admit  of  doubt.  Said  Chief 
Justice  Wilmot:  "The  power  which  the  courts  in  Westminster 
Hall  have  of  vindicating  their  own  authority  is  coeval  with 
their  first  foundation  and  institution ;  it  is  a  necessary  incident 
to  every  court  of  justice,  Avhether  of  record  or  not,  to  fine  and 
imprison  for  a  contempt  acted  in  the  face  of  the  court;  and 
the  issuing  of  attachments  by  the  Supreme  Court  of  Justice  in 
Westminster  Hall  for  contempts  out  of  court  stands  on  the 
same  immemorial  usage  which  supports  the  whole  fabric  of  the 
connnon  law.  It  is  as  much  the  lex  terras,  and  within  the  ex- 
ception of  !Magna  Charta,  as  the  issuing  of  any  other  legal 
I)rocess  whatsoever.     I  have  examined  very  carefully  to  see  if 


CAUTER  i».  COMMONWEALTH. 


809 


I  could  find  out  nny  vo.-^tigps  of  its  introduction,  but  cnn  find 
none.  It  is  as  nncicnt  as  any  other  part  of  the  couitnon  law. 
There  is  no  priority  or  posti'riority  to  bo  found  al)out  it.  It 
caniint,  theroforo,  be  said  to  invade  the  common  law.  It  acts 
in  alliiinco  and  frion<lIy  conjunction  with  every  other  provision 
which  the  wisdoni  of  our  ancestors  has  estiiblishcd  for  the  gen- 
eral good  of  society.  Truth  compels  me  to  say  that  the  mode  of 
proceeding  by  attachment  stands  upon  the  very  same  foundation 
as  trial  by  jnry.  It  is  a  constitutional  remedy  in  particular 
cases,  and  the  judges  in  those  cases  are  as  much  bound  to  gi^■o 
an  activity  to  this  part  of  the  law  as  to  any  other.  Campbell's 
Lives  of  Chief  Justices,  153. 

In  United  Stales  v.  Hudson,  7  Cranch,  1)2,  it  was  held  that 
"certain  implied  powers  must  necessarily  result  to  our  courts 
of  justice  from  the  nature  of  their  institution.  But  jurisdic- 
tion of  crimes  against  the  State  is  not  among  those  powers.  To 
fine  for  contempt,  imprison  for  contiunacy,  enforce  the  observ- 
ance of  order,  etc.,  are  powers  which  cannot  be  dispensed  with 
in  a  court,  because  they  are  necessary  to  the  exercise  of  all 
others;  and  so  far  our  courts  no  doubt  possess  powers  not  im- 
mediately derived  ivoxn  statute." 

In  Wells  V.  Commonivcalth,  21  Grat.  503,  it  was  said:  "Tho 
power  to  fine  and  imprison  for  contempt  is  incident  to  every 
court  of  record.  The  courts,  ex  necessitate,  have  the  power  of 
protecting  the  administration  of  justice,  with  a  promptness 
calculated  to  meet  the  exigency  of  the  particular  case." 

It  is  unnecessary,  however,  to  multiply  authority  iipon  this 
point,  for  we  understand  it  to  have  been  conceded  by  counsel 
for  plaintiff  in  error  that  the  power  to  punish  contempts  is  in- 
herent in  all  courts ;  but  the  contention  is  that  it  may  be  regu- 
lated by  legislative  action,  and  we  are  prepared  to  concede  that 
it  is  proper  for  the  legislature  to  regulate  the  exercise  of  the 
l)0wer  so  long  as  it  confines  itself  within  limits  consistent  with 
the  presei*vation  of  the  authority  of  courts  to  enforce  such  re- 
spect and  obedience  as  are  necessary  to  their  vigor  and  effi- 
ciency. 

Xow,  the  contention  of  the  plaintiff  in  error  is  that  the  act 
here  jnmished  was  not  a  contempt  under  the  statute  of  1830-31, 
and  that  in  order  to  hold  it  punishable  summarily,  it  is  necos- 


■S 


fi» 


310 


AMERICAN  CRIMINAL  REPORTS. 


W"'; 


h^<^4 


b4«- I 


ill 


sary  to  hold  that  the  statute  referred  to  is  unconstitutional. 
There  has  been  no  adjudication  upon  that  statute,  to  our  knowl- 
edge, since  the  adoption  of  the  constitution  of  1851 ;  for  in  the 
ease  of  Wells  v.  CommonweaUh,  supra.  Wells  was,  as  we  have 
seen,  acquitted  of  the  offense.  So  far,  therefore,  as  the  statute 
is  to  be  considered  as  declaratory  of  the  powers  existent  in  the 
court  established  by  the  constitiition,  it  is  free  from  objection ; 
so  far  as  it  is  a  reasonable  regulation  of  the  power  vested  in  the 
courts,  we  have  no  disposition  to  question  it;  but  if  it  is  to  be 
construed  as  a  negation  of  the  power  of  the  court  to  punish  a 
contempt,  whether  by  excluding  it  from  its  enumeration  and 
classilication  of  acts  which  may  be  summarily  dealt  with  by  the 
court,  or  by  taking  from  the  courts  the  power  to  punish  at  all 
those  acts  enumerated  as  contempts,  we  are  constrained  to  hold 
that  the  legislature  has  transcended  the  powers  prescribed  to  it 
by  the  constitution. 

It  was  contended  by  counsel  for  plaintiff  in  error  that,  inas- 
much as  the  act  of  1897-98  merely  transferred  the  punishment 
of  contempts  from  the  court  to  a  jury,  and  even  made  acts 
punishable  as  contempts  not  embraced-  within  the  act  of  1830- 
ISol,  that  it  Avas  not  obnoxious  to  the  objection  that  it  inter- 
fered with  or  diminished  the  power  of  the  court  to  protect  itself. 

To  this  view  we  cannot  assent.  It  is  not  a  question  of  the  de- 
gree or  extent  of  the  pimishment  inflicted.  It  may  be  that  ju- 
ries would  punish  a  given  offense  with  more  severity  than  the 
court;  but  yet  the  jury  is  a  tribunal  sepai'ate  and  distinct  from 
the  court.  The  power  to  punish  for  contempts  is  inherent  in 
the  courts,  and  is  conferred  upon  them  by  the  constitution  by 
the  very  act  of  their  creation.  It  is  a  trust  confided  and  a  duty 
imposed  upon  us  by  the  sovereign  people,  which  we  cannot  sur- 
render or  suffer  to  be  impaired  without  being  recreant  to  ou'r 
duty. 

Upon  the  point  made  by  counsel  for  plaintiff  in  error,  that 
the  offense  under  consideration,  if  not  embraced  within  the 
category  of  direct  contempts  by  the  act  of  1897-98,  neither  was 
it  I>y  that  of  1830-31,  we  cannot  do  better  than  to  quote  the 
langu.ige  of  the  Supreme  Court  of  Arkansas,  in  State  v.  Mor- 
riU,  Ifl  Ark.,  at  page  390: 

"The  legislature  may  regulate  the  exercise  of,  but  cannot 


CARTER  V.  COMMONWEALTH. 


311 


I 


abridge,  the  express  or  necessarily  implied  powers  granted  to 
this  court  by  the  constitution.  If  it  coiild,  it  might  encroach 
upon  both  the  judicial  and  execiitive  departments,  and  draw 
to  itself  all  the  powers  of  goverament,  and  thereby  destroy  that 
admirable  system  of  checks  and  balances  to  be  found  in  the 
organic  framework  of  both  the  Federal  and  State  institutions, 
and  a  favorite  theory  in  the  government  of  the  American  peo- 
ple. 

"As  far  as  the  act  in  question  goes,  in  sanctioning  the  power 
of  the  courts  to  punish,  as  contempts,  the  'acts'  therein  enumer- 
ated, it  is  merely  declaratory  of  what  the  law  was  before  its 
passage.  The  prohibitory  feature  of  the  act  can  be  regarded  as 
nothing  more  than  the  expression  of  a  judicial  opinion  by  the 
legislature  that  the  courts  may  exercise  and  enforce  all  their 
c(  institutional  powers,  and  answer  all  the  useful  purposes  of 
their  creation,  without  the  necessity  of  punishing  as  a  contempt 
anv  matter  not  enumerated  in  the  act.  As  such,  it  is  entitled 
to  great  respect;  but  to  say  that  it  is  absolutely  binding  upon 
tlie  courts  would  be  to  concede  that  the  courts  have  no  consti- 
tutional and  inherent  pow?r  to  pimish  any  class  of  contempts, 
but  that  the  whole  subject  is  imder  the  control  of  the  legislative 
department,  because,  if  the  general  assembly  may  deprive  the 
ciinrts  of  power  to  punish  one  class  of  contempts,  it  may  go  the 
whole  length,  and  devest  them  of  power  to  punish  any  con- 
toiiipt." 

Itoliance  was  placed  by  counsel  for  plaintiff  in  error  upon  a 
class  of  cases  of  which  Ex  parie  Robinson,  19  Wall.  505,  may 
be  considered  typical.  In  that  case  Robinson  had  in  the  most 
summary  manner,  without  the  opportunity  of  defense,  been 
stricken  from  the  roll  of  attorneys  by  the  district  court  for  the 
Western  district  of  Arkansas.  lie  applied  to  the  Supreme 
Court  for  a  mandamus,  which  is  the  appropriate  remedy  to  re- 
store an  attorney  who  has  been  disbarred,  and  that  court  held, 
^Ir.  Justice  Field  delivoring  the  opinion,  that:  "The  power 
to  punish  for  contempts  is  inherent  in  all  courts.  Its  existence 
is  essential  to  the  preservation  of  order  in  judicial  proceedings, 
and  to  the  enforcement  of  the  judgments,  orders,  and  writs  of 
the  courts,  and  consequently  to  the  due  administration  of  jus- 
tice.   The  moment  the  courts  of  the  United  States  were  called 


m 


312 


AMERICAN  CRIMINAL  REPORTS. 


into  exiatcncG,  and  invested  with  jurisdiction  over  any  subject, 
they  became  possessed  of  this  power.  But  the  power  has  been 
limited  and  defined  by  the  act  of  Congress  of  March  2,  1831," 
and  the  court  declared  that  there  could  be  no  question  as  to  its 
application  to  the  circuit  and  district  courts.  "These  courts 
were  created  by  act  of  Congress.  Their  powers  and  duties  de- 
pend upon  the  act  calling  them  into  existence,  or  subsequent 
acts  extending  or  limiting  their  jxirisdiction.  The  act  of  1S;31 
is,  therefore,  to  them  the  law  specifying  the  cases  in  which 
summary  punishment  for  contempts  may  be  inflicted." 

Turning  to  the  constitution  of  the  United  States,  we  find  that 
it  declares  that  "the  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as 
the  Congress  may  from  time  to  time  ordain  and  establish."  This 
language  is  the  equivalent  of  that  found  in  our  constitution 
prior  to  that  of  1851,  hereinbefore  quoted.  The  inferior  Fed- 
eral courts  and  their  jurisdiction  are  the  creatures  of  Congress, 
and  not  of  the  constitution. 

It  may  be  remarked,  also,  with  respect  to  the  case  of  Ex  parte 
Robinson,  that  the  United  States  statute  of  1831,  while  it  care- 
fully enximerates  the  subjects  for  which  courts  may  punish  sum- 
marily for  contempt,  that  enumeration  is  so  comprehensive  as 
to  afford  complete  protection  to  the  courts  in  the  performance 
of  their  duties,  and  contains  no  limitation  whatever  upon  the 
power  to  punish  in  the  enumerated  cases ;  and  that,  while  pun- 
ishment which  courts  may  intlict  is  limited  to  fine  and  inqiris- 
onment,  their  discretion  is  without  limit  as  to  the  amount  of  the 
fine  or  the  duration  of  the  imprisonment.  The  courts  of  the 
United  States  will  never  be  embarrassed  by  the  decision  in  Ex 
parte  Robinson;  for,  while  the  power  to  disbar  an  attorney  is 
denied  in  that  case  as  a  proper  punishment  for  contempt,  the 
jurisdiction  of  the  courts  to  disbar,  after  citation  to  appear  and 
notice  of  the  ground  of  complaint  against,  and  an  opportunity 
for  explanation  and  defense,  is  fully  recognized. 

It  were  an  unprofitable  task  to  attempt  to  review  within  the 
limits  of  an  opinion  all  the  adjudged  case  to  which  our  atten- 
tion has  been  called,  and  which,  with  very  many  others,  havo 
been  considered  by  us.    For  the  benefit  of  those  who  may  feel 


1^   -I 


S^H 


CARTER  V.  COMMONWEALTH. 


313 


themselves  moved  to  a  further  investigation  of  this  subject,  we 
cite,  without  comment,  the  followi'^ig  cases : 

Slate  V.  Frew,  24  W.  Va.  41G;  Hale  v.  State,  45  K  E.  199; 
In  re  Shortridge,  99  Cal.  52G,  34  Pac.  227 ;  Storey  v.  People, 
79  111.  45;  Ilolman  v.  State,  105  Ind.  513,  5  X.  E.  Rep.  556; 
State  V.  Knight,  3  S.  D.  509,  54  X.  W.  Rep.  412 ;  State  v.  Gal- 
loway, 5  Cold.  326 ;  Little  v.  State,  90  Ind.  338 ;  Baldwin  v. 
State,  126  Ind.  24,  25  N.  E.  Rep.  9>20\Aiiiold  v.  Com.,  80  Ky. 
300;  Ex  parte  Crenshcw,  80  Mo.  447;  Hughes  v.  People,  5 
Colo.  445 ;  Wyatt  v.  People,  17  Colo.  252,  28  Pac.  Rep.  961 ; 
Langdon  v.  V/ayne,  76  Mich.  367,  43  N.  W.  Rep.  310;  and 
Ex  paiie  Schenck,  65  !X.  C.  353. 

In  public  apprehension,  the  legislature  is  deemed  in  a  pe- 
culiar sense  the  agent  and  representative  of  the  people.  It  is 
true,  it  constitutes  the  most  numerous  branch  of  the  govern- 
ment, and  the  brief  terms  for  which  its  members  are  elected, 
and  the  fact  that  they  are  directly  voted  for  by  the  people,  give 
color  to  and  encourage  this  opinion;  but  a  moment's  reflection 
should  serve  to  dispel  it.  In  our  system  of  government  all 
power  and  authority  are  derived  from  the  people.  They  have 
seen  fit,  by  organic  law,  to  distribute  the  powers  of  government 
among  three  great  co-ordinate  departments, — the  executive, 
the  legislative,  and  the  judicial.  The  constitution  of  the  State, 
which  is  the  law  to  all,  declares  in  the  seventh  section  of  the 
first  article  that  "the  legislative,  executive,  and  judiciary  pow- 
ers should  be  separate  and  distinct."  This  is  a  quotation  from 
the  Bill  of  Rights, — an  instrument  which  should  never  be  men- 
tioned, save  with  the  reverence  due  to  the  great  charter  of  our 
liberties.  Of  such  importance  is  this  principle  deemed  that  it 
is  repeated  and  constitutes  a  distinct  article,  which  declares 
that  "the  legislative,  executive,  and  judiciary  departments  shall 
be  separate  and  distinct,  so  that  neither  exercise  the  powers 
properly  belonging  to  either  of  the  others ;  nor  shall  any  person 
exercise  the  power  of  more  than  one  of  them  at  the  same  time, 
except  as  hereinafter  provided."  WHioever,  therefore,  belongs 
to  either  one  of  those  great  departments  is  an  agent  and  servant 
of  a  common  master;  and  each  and  all  represent  a  part  of  the 
sovereignty  of  the  State,  so  long  as  they  move  within  the  ap- 


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1  i 


314 


AMERICAN  CRIMINAL  REPORTS. 


propriate  spheres  prescribed  to  them  by  the  organic  law.  A 
co\irt,  and  the  judge  thereof,  is  as  much  an  agent  and  son^ant 
of  the  people  as  any  other  officer  of  government,  and  he  is 
bound  by  the  duty  and  obligation  which  he  owes  to  the  Com- 
monwealth to  cherish,  defend,  and  transmit  unimpaired  to  his 
successors  the  office  with  Avhich  the  Commonwealth  has  seen  fit 
to  honor  him.  A  judge,  therefore,  in  vindicating  the  dignity 
and  aiithority  of  the  court  over  which  he  presides,  is  discharging 
a  solemn  duty  owed  in  his  official  character,  and  is  not  engaged 
in  a  personal  and  private  controversy. 

Speaking  upon  this  subject,  the  Supreme  Court  of  West  Vir- 
ginia in  State  v.  Frew,  2-i  W.  Va.,  at  page  477,  uses  the  follow- 
ing language : 

"Having  thus  sho^^^a  that  this  court  has  the  power  to  punish 
for  contempt,  it  must  not  be  overlooked  that  this  power  can 
be  justified  by  necessity  alone,  and  should  »arely  be  exercised, 
and  never,  except  when  the  necessity  is  plain  and  unmistak- 
able. It  is  not  given  for  the  private  advantage  of  the  judges 
who  sit  in  the  court,  but  to  preserve  to  them  that  respect  and  re- 
gard of  which  courts  cannot  be  deprived  and  maintain  their 
usefulness.  It  is  given  that  the  law  may  be  administered  fairly 
and  impartially,  uninterrupted  by  any  influence  which  might 
affect  the  rights  of  the  parties  or  bias  the  minds  of  the  judges, 
that  the  court  may  command  that  respect  and  sanctity  s^^  es- 
sential to  make  the  law  itself  respected,  and  that  the  strea:  '•■  f 
justice  may  be  kept  pure  and  uncorruptcd.     .     .     . 

"The  public  have  a  profound  interest  in  the  good  name  and 
fame  of  their  courts  of  justice,  and  especially  of  the  courts  of 
last  resort.  Everything  that  affects  the  well-being  of  organized 
society,  the  rights  of  property,  and  the  life  and  liberty  of  the 
citizen  is  submitted  to  their  final  decision.  The  confidence 
of  the  public  in  the  judiciary  should  not  be  wantonly  im- 
paired.    .     .     . 

''"NVe  know  full  well  that  respect  to  courts  or  judges  cannot 
be  compelled.  'Respect  is  the  voluntary  tribute  of  the  people 
to  worth,  virtue,  and  intelligence;  and,  while  these  are  found 
on  the  judgment  seat,  so  long,  and  no  longer,  will  courts  re- 
tain the  public  confidence.'  P>ut  the  people  have  placed  the 
judge  in  a  position  in  which  he  unavoidably  comes  in  conflict 


i  ,1 


V      ■? 


CARTER  V.  COMMONWEALTH. 


315 


with  the  jealousies  and  resentments  of  those  upon  whose  interest 
lie  has  to  act.  His  character,  virtue,  and  intelligence,  how- 
ever pure  and  unselfish,  are  not  always  a  protection  against 
the  prejudices  and  passions  of  such  as  conceive  themselves  in- 
iurod  by  his  legitimate  and  proper  official  acts;  and,  when  as- 
sailed by  such,  if  he  may  not  punish  them  as  a  court,  'he  will  be 
reduced  to  the  alternative  of  either  submitting  tamely  to  con- 
tumely and  insult,  or  to  resenting  it  by  force,  or  resorting  to 
the  doubtful  remedy  of  an  action  at  law.'  " 

As  was  said  by  Judge  Dade  in  Dandridge's  Case,  2  Va.  Cas. 
408 :  "In  such  a  state  of  things  it  would  rest  in  the  discretion 
of  every  party  in  court  to  force  the  judge  either  to  shrink  from 
his  duty,  or  to  incur  the  degradation  of  his  authority,  which 
must  imavoidably  result  from  the  adoption  of  either  of  the 
above  alternatives.  To  suppose  that  the  personal  character  of 
the  judge  would  be  a  s\;fficient  guaranty  against  this  is  to  im- 
aeine  a  state  of  society  which  would  render  the  office  of  the 
judge  wholly  iinnecessary." 

The  enumeration  of  subjects  punishable  as  direct  contempts 
in  the  act  under  consideration  seems  to  embrace  almost  every 
cdneoivable  form  of  that  offense  which  can  occur  in  the  pres- 
ence of,  or  in  proximity  to,  the  court ;  that  is  to  say,  under  cir- 
cumstances likely  to  arouse  the  passion  or  prejudice  of  the 
judge,  and  disturb  the  equanimity  essential  to  calm  and  wise 
judicial  action.  The  coiirt  may  punish  summarily  not  only 
ill!  such  offenses,  but  for  disobedience  or  resistance  to  any  law- 
ful process,  judgment,  decree,  or  order ;  itd  officers,  jurors,  and 
witnesses  may  also  thus  be  punished ;  and  only  the  parties  to 
the  suit  are  entitled  to  a  trial  by  jury.  Thus  we  see  that  of- 
f(>i)f=('s  of  a  natiire  personal  to  the  court  are  to  be  punished  by 
the  court,  while  those  which  interest  suitors  are  punishable 
only  by  a  jury.  So  that  suitors,  having  obtained  a  judgment 
or  decree,  after  long  and  expensive  litigation,  find  the  court 
])ower]ess  to  secure  to  them  its  fruition  and  enjoyment,  and, 
unless  their  antagonist  chance  to  be  a  law-abiding  citizen,  dis- 
cover that  their  success  has  only  begotten  another  controversy. 
Ours  is  a  law-abiding  community,  and  good  citizens  will,  with- 
out compulsion,  respect  the  lawful  orders  of  their  courts;  but 
in  every  society  there  are  those  who  obey  the  laws  only  because 


'-if 

i 


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■:i 


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'I  I 


iipl 


316 


AMERICAN  CRIMINAL  REPORTS. 


there  is  Ixjliincl  them  a  force  they  dare  not  resist.  Is  it  wise  or 
beneficent  legislation  which  accepts  the  obedience  of  the  good 
citizen,  but  is  powerless  to  enforce  the  law  against  the  recalci- 
trant ?  Under  this  law,  the  authority  of  the  courts  would  be  re- 
duced to  a  mere  "power  of  contention." 

We  are  fully  aware  of  the  delicate  duty  involved  in  holding 
a  statute  to  be  unconstitutional,  and  we  fully  recognize  that  it 
should  never  be  done,  except  in  the  case  of  a  plain  deviation 
from  the  organic  law. 

*'The  courts  may  declare  legislative  enactments  unconntitn- 
tional  and  void  in  some  cases,  but  not  because  the  judiciiil 
power  is  superior  in  degree  and  dignity  to  the  legislative. 
Being  required  to  declare  what  the  law  is  in  the  cases  which 
come  before  them,  they  must  enforce  the  constitution  as  tlie 
paramount  law,  whenever  a  legislative  enactment  comes  in 
conflict  with  it.  But  the  courts  sit,  not  to  review  or  revise  the 
legislative  action,  but  to  enforce  the  legislative  will;  and  it  is 
only  where  they  find  that  the  legislature  has  failed  to  keep 
within  its  constitutional  limits  that  they  are  at  liberty  to  disre- 
gard its  action,  and,  in  doing  so,  they  only  do  what  every  pri- 
vate citizen  may  do  in  respect  to  the  mandates  of  the  courts 
when  the  judges  assume  to  act  and  to  render  judgments  or  de- 
crees without  jurisdiction."  Cooley,  Const.  Lim.  (Gth  ed.), 
p.  102. 

"In  exercising  this  high  authority,  the  judges  claim  no  ju- 
dicial supremacy.  They  are  only  the  administrators  of  the 
public  will.  If  an  act  of  the  legislature  is  held  void,  it  is  not 
because  the  judges  have  any  control  over  the  legislative  power, 
but  becaixse  the  act  is  forbidden  by  the  constitution,  and  be- 
cause the  will  of  the  people,  which  is  therein  declared,  is  para- 
mount to  that  of  their  representatives  expressed  in  any  law." 
See  Lindsay  v.  Commissioners,  2  Bay,  38,  Gl ;  People  v. 
liucker,  5  Colo.  455. 

Reading  the  constitution  of  the  State  in  the  light  of  the  de- 
cisions of  eminent  courts  which  we  have  consulted,  we  feel  war- 
ranted in  the  following  conclusions : 

That  in  the  courts  created  i)y  tk'e  constitution  there  is  an  in- 
herent power  of  self-defense  and  self-preservation;  that  this 
power  may  be  regulated,  but  cannot  be  destroyed,  or  so  far 


.  ^ 


CARTER  V.  COMMONWEALTH. 


317 


(liminislied  as  to  be  rendered  ineffectual  by  legislative  enact- 
ment; that  it  is  a  power  necessarily  resident  in,  and  to  be  ex- 
ercised by,  the  court  itself,  and  that  the  vice  of  an  act  which 
seeks  to  deprive  the  court  of  this  inherent  power  is  not  cured 
by  providing  for  its  exercise  by  a  jury ;  that,  while  the  legis- 
lature has  the  power  to  regulate  the  jurisdiction  of  circuit, 
county,  and  corporation  courts,  it  cannot  destroy,  while  it  may 
confino  within  reasonable  bounds,  the  authority  necessary  to 
the  exercise  of  the  jurisdiction  conferred. 

It  was  suggested  in  argument  that  to  maintain  the  position 
that  to  intrust  juries  with  the  power  to  punish  for  contempts 
would  impair  the  efficiency  and  dignity  of  courts  disclosed  a 
want  of  confidence  in  that  time-honored  institution.  May  it 
not  be  said  in  reply  that  to  take  from  courts  a  jurisdiction  which 
they  have  possessed  from  their  foundation  betrays  a  Avant  of 
confidence  in  them  wholly  unwarranted  by  experience  ?  The 
history  of  this  court,  and  indeed  of  all  the  courts  of  this  Com- 
monwealth, shows  the  jealous  care  with  which  they  have  ever 
defended  and  maintained  the  just  authority  and  respect  due  to 
juries  as  an  agency  in  the  administration  of  justice;  but  our 
duty,  as  we  conceive  it,  requires  us  not  to  be  less  firm  in  vindi- 
cating the  rightful  authority  and  power  of  the  courts. 

We  cannot  more  properly  conclude  this  opinion  than  by  a 
quotation  from  a  great  English  judge:  "It  is  a  rule  founded 
on  the  reason  of  the  common  law  that  all  contempts  to  the  pro- 
cess of  the  court,  to  its  judges,  jurors,  ofiicers,  and  ministers, 
when  acting  in  the  due  discharge  of  their  respective  duties, 
wlictlier  such  contempts  be  by  direct  obstruction,  or  consequen- 
tially,— that  is  to  say,  whether  they  be  by  act  or  writing, — are 
punishable  by  the  court  itself,  and  may  be  abated  instanter  as 
nuisances  to  public  justice. 

"There  are  those  who  object  to  attachments  as  being  con- 
trary, in  popular  constitutions,  to  first  principles.  To  this  it 
may  briefly  be  replied  that  they  are  the  first  principles,  being 
founded  on  that  which  founds  government  and  constitutes  law. 
They  are  the  principles  of  self-defense, — the  vindication,  not 
only  of  the  authority,  but  of  the  very  power  of  acting  in  coui-ts. 
It  is  in  vain  that  the  law  has  the  right  to  act,  if  there  be  a 
power  above  the  law  which  has  a  right  to  resist.    The  law  would 


I 
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ill 


hi 


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1 


318 


AMERICAN  CRIMINAL  REPORTS. 


then  be  but  the  right  of  anarchy  and  the  power  of  contontion." 
Holt,  Libel,  ch.  9. 

Whatever  opinion  may  be  entertained  of  some  of  his  prede- 
cessors, Chief  Justice  Holt  was  no  servile  minion  of  arbitrary 
power.  He  was  an  actor  in  that  great  revolution  which  ended 
forever  in  Great  Britain  the  pernicious  dogma  of  the  divine 
right  of  kings,  which  first  recognized  the  will  of  the  people  as 
the  only  rightful  source  of  government,  and  established  the  in- 
dependence of  the  judiciary  as  one  of  the  surest  bulwarks  of 
free  institutions. 

The  judgment  of  the  circuit  court  is  affirmed. 

Notes  (by  J.  F.  G.). — Procedure  as  to  criminal  contempt. — If  the 
act  or  acts  constituting  the  contempt  are  done  in  the  immediate  pres- 
ence of  the  court,  the  offense  is  termed  direct  contempt,  and  the  court, 
having  personal  knowledge  of  the  fact,  may  on  his  own  motion  proceed 
to  administer  a  punishment;  but  if  the  contemptuous  conduct  is  en- 
tirely, or  partly,  out  of  the  presence  of  the  court,  it  is  termed  indirect 
or  constructive  contempt,  and,  like  all  other  criminal  matters,  the 
court  cannot  proceed  in  relation  thereto  until  it  is  informed  of  the 
offense,  which  must  be  under  oath,  usually  by  affidavit,  in  which  the 
statement  of  facts  must  be  explicit  and  certain.  If  the  statements  in 
the  affldavit  do  not  show  a  prima  facie  case,  with  the  necessary  essen- 
tials, the  proceeding  cannot  stand.  Batchelder  v.  Moore,  42  Cal.  412; 
State  V.  Bweetland,  3  S.  D.  503,  54  N.  W.  Rep.  415;  McDonald  v.  State, 
46  Ind.  298;  Cooley  v.  State,  46  Neb.  603,  65  N.  W.  Rep.  799;  State  v. 
Root,  5  N.  D.  487,  67  N.  W.  Rep.  590;  Young  v.  Cannon,  2  Utah,  5G0; 
In  re  Spencer,  4  MacArthur,  433.  If  the  affidavit  is  insufficient,  giving 
bail  does  not  cure  the  detect  (State  v.  Gallup,  1  Kan.  App.  618,  42  Pac. 
Rep.  406),  nor  does  appearance  and  answer  (Wilson  v.  Territory,  1 
Wyo.  155).  If  a  sufficient  showing  is  made  in  the  affidavit,  the  ac- 
cused is  required  to  show  cause  why  he  should  not  be  punished,  and, 
In  some  instances,  may  be  required  to  answer  Interrogatories  filed. 
If  he  does  not  answer,  the  statements  of  the  accusation  are  taken  as 
true;  but  if  he  answers,  it  must  be  by  affidavit,  in  which  the  state- 
ments must  be  made  with  sufficient  certainty  that.  If  falsely  made, 
he  is  liable  to  the  penalties  of  perjury.  If  in  his  answer  he  denies  all 
of  the  charges  in  detail,  or  sufficient  to  controvert  the  charge  of  con- 
tempt, he  is  deemed  to  have  purged  himself  of  the  contempt,  and  is 
entitled  to  his  discharge  (Utiited  States  v.  Dodge,  2  Gall.  313;  In  re 
Pittman,  1  Curt.  (U.  S.)  186;  People  v.  Few,  2  Johns.  290;  Jackson  v. 
Smith.  5  Johns.  115;  In  re  May,  1  Fed.  Rep.  737;  Burke  v.  State,  47 
Ind.  528;  State  v.  Earl.  41  Ind.  464;  In  re  Walker,  82  N.  C.  95;  Ex 
parte  Biggs.  64  N.  C.  202;  In  re  Moore,  63  N.  C.  397;  Converse  v.  Wood, 
5  Ab.  Pr.  84;  Rex  v.  Sims,  12  Mod.  511;  Saunders  v.  Melhuish,  6  Mod. 
73;  Thomas'  Lessees  v.  Cummings,  1  Yates,  40;  Porter  v.  Low,  16  How. 


H  !   .;'  I 


CARTER  V.  COMMONWEALTH. 


3VJ 


Pr.  549;  Matter  of  Strong,  5  Rogers  City  Hall  Recorder,  8;  Matter  of 
Spootier,  5  Rogers  City  Hall  Recorder,  109;  Livingston  v.  Lucas,  6  Ala. 
147;  Welsh  v.  People,  30  111.  App.  399;  4  Blackstone's  Commentaries, 
283-287);  for  there  is  no  jury  to  determine  the  issue  joined,  and  hence, 
the  charge  being  criminal,  the  defendant's  answers  must  be  taken  as 
conclusive  in  that  proceeding. 

Procedure  as  to  civil  contempt. — Civil  contempt  consists  in  acts  of 
commission  or  omission  in  disobedience  of  a  writ,  order,  or  decree  of 
the  court,  detrimental  to  the  Interests  of  a  party  litigant;  the  judg- 
ment of  conviction  being  entered  solely  as  a  legal  process  to  enforce 
the  writ,  order,  or  decree,  and  In  no  sense  as  a  punishment  for  an  in- 
dignity or  insult  offered  to  the  court.  This  is  well  illustrated  by  an 
Illinois  case  where  a  circuit  judge  imposed  a  fine  because  of  an  al- 
leged violation  of  a  decree  of  that  court.  The  appellate  court  reversed 
the  conviction  upon  the  ground  that  the  violation  of  the  decree  did 
not  appear  to  be  detrimental  to  the  interest  of  a  party  litigant.  Died- 
rich  V.  People,  37  111.  App.  604.  An  appeal  in  the  name  of  the  People 
was  taken  to  the  Supreme  Court,  where  a  motion  was  made  to  dismiss 
the  appeal,  in  that  the  People  had  no  right  to  an  appeal  in  a  criminal 
matter;  but  the  Supreme  Court  overruled  the  motion  and  held  that, 
although  the  action  was  in  the  name  of  the  People,  It  was  a  remedial 
action,  for  the  purpose  of  enforcing  a  decree  of  the  court;  but  upon 
hearing  of  the  case  affirmed  the  judgment  of  the  appellate  court  upon 
the  ground  that  the  contempt  proceeding  was  not  "for  the  purpose  of 
vindicating  the  power  and  dignity  of  the  court,"  but  was  a  chancery 
proceeding  for  the  benefit  of  the  complainants  In  an  injunction  suit, 
and  that,  as  no  injury  had  been  done  to  the  complainants,  no  punish- 
ment could  be  imposed  upon  the  respondent.  People  v.  Diedrich,  141 
111.  665,  30  N.  E.  Rep.  1038. 

The  Virginia  statute  in  question. — Presumably  by  the  act  of  1897-98 
it  was  intended  to  curb  the  powers  of  the  court  and  guard  the  rights 
of  the  accused  In  contempt  proceedings;  but  like  many  other  ill- 
advised  efforts  at  reform  legislation,  even  were  the  act  valid  as  an 
entirety,  it  would  not  accomplish  the  reform  intended.  Instead  of 
curbing,  it  grants  new  power  to  the  court,  by  enlarging  the  deflnition 
of  direct  contempt.  It  includes  In  that  class  acts  not  done  in  the  pres- 
ence of  the  court,  but  ";  i  near  as  to  obstruct  the  administration  of 
justice;"  also  Interference  with  officers,  witnesses  or  jurors  on  their 
way  to  or  returning  from  court,  and  the  resistance  of  lawful  process 
of  the  court.  These  matters,  previous  to  the  statute,  were  constructive 
contempt,  and  required  a  specific  charge,  of  which  the  accused  might 
purge  himself  upon  his  oath;  but  it  Is  attempted  by  the  act  to  give  the 
court  power  to  hear  "the  evidence  submitted,"  and  determine  the  mat- 
ter without  a  trial  by  jury.  Thus  an  effort  is  made  to  remove  safe- 
guards and  transfer  the  major  part  of  constructive  contempt  out  of 
its  class,  and  grant  to  the  judge  power  to  hear  evidence  and  determine 
Issues  of  fact  regarding  criminal  offenses  not  committed  In  his  pres- 
ence, thereby  infringing  the  constitutional  right  of  trial  by  jury,  so 
zealously  guarded  by  the  common-law  rule  applying  to  constructive 


u 


320 


AMERICAN  CRIMINAL  REPORTS. 


contempt.  Of  the  few  remnants  left  in  the  wreck,  a  trial  by  Jury  Is 
offered  the  accused,  who  before  the  statute,  if  Innocent,  could  on  his 
own  oath  acquit  himself. 

The  few  excerpts  given  in  the  opinion  would  indicate  that  the  stat- 
ute is  limited  to  criminal  contempt,  and  has  no  application  to  those 
cases  where  the  proceeding  is  remedial  in  its  nature,  and,  as  held  in 
some  cases,  evidence  on  both  sides  is  submitted  to  the  Judge. 

The  statute  was  passed  upon  at  the  same  term  of  court  as  to  other 
provisions  contained  in  it.  (See  next  case  in  this  volume,  Trimble  v. 
CommomLealth.) 


Contempt: 


Trimble  v.  Commonwealth. 

96  Va.  818—32  S.  E.  Rep.  786. 

Decided  March  23,  1899. 

Constitutional   law — Disclaimer — Habeas    corpus    for    cus- 
tody of  child. 


If  the  provisions  of  an  act  of  the  legislature  are  so  Interwoven, 
connected  and  Interdependent  on  each  other,  that  disregarding 
one  would  destroy  the  efficiency  of  the  others,  then  a  provision 
violative  of  the  constitution  will  render  the  entire  act  void;  but 
if  the  provisions  are  separate,  distinct  and  not  Interdependent, 
and  a  part  of  the  act  complete  and  effective  after  the  objection- 
able part  is  eliminated,  then  that  part  of  the  act  is  valid  and 
may  stand  as  the  complete  act. 

A  mother  having  presented  a  petition  for  a  writ  of  habeas  corpus 
for  the  possession  of  her  child,  whom  she  had  voluntarily  left 
in  the  custody  of  another  woman,  and  pending  the  hearing  of 
the  writ  the  child  is  remanded  into  the  custody  of  the  respond- 
ent, "until  the  further  order  of  the  court;"  and  the  respondent 
having,  with  the  sanction  of  the  Judge,  taken  the  child  tem- 
porarily out  of  the  State,  in  which  other  State  a  guardianship 
for  the  child  .was  declared;  and  on  the  return  of  the  respondent 
she  makes  answer  that,  believing  it  was  the  wish  of  the  court 
that  the  child  should  be  placed  with  a  private  family  or  at  a 
school,  in  order  to  effect  this  object,  and  acting  under  advice,  and 
not  intending  to  evade  the  process  of  the  court,  she  permitted  the 
guardianship  proceedings  to  be  had,  held,  no  contempt. 


Error  to  the  Corporation  Court  of  the  City  of  Lynchburg. 
A  judgment  holding  the  plaintiff  in  error  in  contempt  was 
entered  May  4,  1898.    Reversed. 

H.  M.  Ford  and  R.  D.  Yancey,  for  the  plaintiff  in  error. 
A.  J.  Montague,  Atty.  Gen.,  for  the  Commonwealth. 


TRIMBLE  V.  COMMONWEALTH. 


321 


fc.! 


Keith,  P.  One  Susio  Fox  filcil  her  petition  in  the  corpora- 
tion court  for  the  city  of  Lynchburg,  alleging  that  she  is  tho 
iridther  of  a  female  child  five  years  of  age,  named  Lillian  May 
Fox;  that  slie  had  theretofore  placed  this  child  with  a  certain 
Ella  Trimble  to  keep  and  care  for  during  the  petitioner's  ex- 
pected absence  from  the  city  of  Lynchburg,  with  the  under- 
standing that  the  child  would  bo  delivertl  to  her  on  her  return. 
Ella  Trimble  refused,  upon  the  mother's  demand,  to  restore  the 
child  to  her  custody,  and  thereupon  this  petition  was  filed,  pray- 
ing for  a  writ  of  habeas  corpus.  A  rule  to  show  cause  against 
the  writ  was  issued,  and,  upon  the  answer  made  by  Ella  Trim- 
ble, the  court  entered  the  following  order : 

"Uj)on  consideration  of  the  within  petition  and  answer  and 
the  evidence,  the  court  doth  remand  the  child  Lillian  May  Fox 
to  the  custody  of  Ella  Trimble  until  the  further  order  of  tho 
court.    May  10,  1S97." 

On  the  22d  of  ^March,  1898,  the  following  order  was  entered 
in  this  proceeding: 

"It  is  ordered  that  the  defendant,  Ella  Trimble,  do  produce 
the  liody  of  Lillian  May  Fox  in  court  on  the  first  day  of  the 
next  term  of  the  said  corporation  court  for  the  city  of  Lynch- 
burg, and  show  cause,  if  any  she  can,  why  the  said  order  here- 
tofore made  on  the  said  10th  day  of  May,  1897,  should  not  be 
revoked." 

Li  compliance  with  this  order,  Ella  Trimble  filed  her  answer, 
in  which  she  states  the  proceedings  up  to  that  time,  and  then 
goes  on  to  say  that  when  the  case  was  before  the  court  in  May, 
1S!)7,  and  the  child  was  remanded  to  her  custody,  she  under- 
stood it  to  be  the  wish  of  the  court  that  she  should  either  place 
the  child  in  some  private  family,  or  at  a  school,  where  it  would 
be  properly  cared  for;  that,  in  order  to  effect  this  object,  she 
went  with  the  child  to  Wake  county,  N.  C,  where,  at  the  sug- 
gestion of  her  sister,  Mollie  Trimble,  and  acting  under  the  ad- 
vice of  counsel,  a  guardian,  upon  motion  of  her  sister,  was  ap- 
pointed by  the  superior  court  of  that  county;  that  the  child 
had  since  been  placed  with  one  W.  E.  Bonner,  who  the  evi- 
dence shows  to  be  a  kind-hearted,  honest,  and  industrious  citi- 
zen. Respondent  further  states  that,  "when  she  took  this  child, 
it  was  in  a  sick  and  starving  condition,  when  neither  the  law, 
VouXI  — 21 


II 


;i\ 


w 


rm:f 


322 


AMEUICAN  CRIMINAL   REPORT& 


nor  any  person  on  its  bolinlf,  gave  it  any  attention;  that  she 
lins  spoilt  more  than  a  year  of  sleepless  and  anxious  nights  in 
watchiiifj;  and  coaxing  the  little  spark  of  vitality  into  life;"  and 
that  the  child  has  gradually  improved  under  her  care.  The  an- 
swer further  avers  that  she  is  imnMe  to  comply  with  the  man- 
date of  the  court  to  produce  the  body  of  the  child  before  it ; 
that  she  no  longer  has  the  care  and  control  of  it;  that  she  has 
no  desire  to  evade  the  process  of  the  court;  and,  in  an  aniondcil 
answer  filed  at  a  subsequent  day,  she  specifically  disclaims  niiy 
contempt  of  court. 

The  court  certifies  in  the  record  that  it  did  not  consider  either 
the  relator  or  respondent  a  suitable  person  to  have  the  chiltl ; 
that  in  the  summer  of  1897  respondent  asked  if  it  would  lie 
wrong  for  her  to  take  the  child  on  a  short  visit  to  her  sister  in 
Kaleigh,  X.  C,  and  was  informed  by  the  judg(^  of  the  court  that 
it  would  not  be  if  she  would  not  keep  it  away ;  that,  while  on 
this  visit,  her  sister,  who  is  not  a  proper  jwrson  to  have  the 
child,  qualified  in  a  Xorth  Carolina  court  as  its  guardian,  and 
the  child  has  never  returned. 

Upon  the  consideration  of  the  rule,  answer,  and  exhibits  filed 
with  it,  and  the  facts  thus  stated  by  the  court,  it  was  of  opinion 
that  the  nnswer  of  Ella  Trimble  was  insufficient,  and  entered 
an  order  that  "she  be  attached  until  she  produces  the  body  of 
the  said  child,  in  the  proceedings  mentioned,  before  this  court, 
or  until  the  further  order  of  the  court."  To  this  judgment,  n 
writ  of  error  was  awarded. 

With  respect  to  some  of  the  qtiestions  presented  ler, 

■without  further  comment,  to  the  opinion  of  the  co  in  the 
case  of  Carter's  Case,  decided  at  the  present  term,  wIik  h  is,  s<« 
far  as  applicable  to  the  case,  made  a  part  of  this  opinion. 

We  are  of  opinion,  however,  that  the  act  of  the  legislature  of 
1897-98,  which  was  in  that  case  adjudged  to  be  unconstitu- 
tional in  some  of  its  aspects,  is  a  valid  statute  in  so  far  as  it 
gives  this  court  jurisdiction  upon  writ  of  error  to  review  this 
judgment. 

That  a  statute  may  be  constitutional  in  part  and  unconsti- 
tutional as  to  some  of  its  provisions  is  well  settled.  See  Home- 
stead Cases,  22  Gratt.  266 ;  Wise  v.  Rogers,  24  Gratt.  169,  and 
Blach  V.  Trower,  79  Va.,  at  page  127,  where  it  is  said: 


w% 


TRIMBLE  V.  COMMONWEALTH. 


3-23 


lor. 


"It  is  true  that  a  statute  in  some  of  its  provisions  may  l)o  uii- 
odiistitutional  and  void,  and  in  others  valid  and  onforoeuhlo. 
!!nt  when  the  valid  part  is  so  connected  with,  and  dependent 
on,  that  which  is  void  as  that  the  parts  are  not  distinctly  sop- 
11  fill (le,  so  that  each  can  stand  as  the  Avill  of  the  legislature,  the 
whole  must  fall." 

Jjut  the  converse  is  equally  true;  and,  where  the  parts  may 
he  ao  separated  as  that  each  can  stand  as  the  will  of  the  legis- 
lature, the  good  does  not  perish  with  the  bad. 

Wp  are  of  opinion  that  the  case  is  properly  before  us  by  vir- 
tue of  the  act  of  1897-98,  p.  548.     " 

Wo  gather  from  the  record  that  plaintiff  in  error  took  this 
child,  Avhich  had  been  restored  to  her  custody  by  the  order  of 
^fay  10,  1897,  to  Xorth  Carolina,  with  the  assent  of  the  cor- 
jioration  court  of  Lynchburg,  and  with  the  intention  of  carry- 
ing out  a  connnendable  purpose,  sanctioned  by  the  court,  with 
respect  to  this  little  waif.  When  in  North  Carolina,  at  the 
suggestion  of  her  sister  and  upon  her  motion,  and  acting  under 
the  advice  of  counsel,  a  court  of  competent  jurisdiction  in  that 
State  was  requested  to  appoint,  and  did  appoint,  a  guardian 
for  this  little  child.  That  guardian  seems  to  have  made  an  ar- 
rangement with  respect  to  the  child's  nurture  of  a  beneficial 
character,  and  there  is  no  evidence  that  in  thus  acting  the  re- 
sjiondent  did  so  with  the  object  of  defeating  the  jurisdiction 
and  authority  of  the  corporation  court  of  Lynchburg.  She  dis- 
claims any  such  purpose,  and  beyond  the  facts  stated,  which  do 
nftt  necessarily,  or,  it  may  be  said,  even  naturally,  bear  such  an 
interpretation,  we  are  of  opinion  that  the  offense  wherewith 
she  was  charged  has  not  been  established,  and  that  the  corpora- 
tion court  of  Lynchburg  erred  in  the  judgment  rendered,  which 
i>  reversed. 

Reversed. 


:- 


» 


i 


';♦ 


824 


AMERICAN  CRIMINAL  REPOPTSi 


State  v.  Klectzen. 


IfJl! 


8  N.  Dak.  286—78  N.  W.  Uep.  984. 

Decided  April  26,  1899. 

Constitutional  Law:   License  act — Haivkera  and  peddlers. 

1.  An  act  of  tlie  Sixth  Legislative  Assembly  entitled  "An  act  taxing 

the  occupation  of  hawldng  and  peddling,  and  regulating  the 
licensing  of  persons  engaged  in  such  occupation,"  construed,  and 
held  to  be  a  measure  intended  to  produce  revenue  by  taxing  the 
occupation  of  peddling;  and  held,  further,  that  the  same  was  also 
intended  as  a  police  measure  to  regulate  such  occupation. 

2.  Said  statute  nowhere  states  or  indicates  the  objects  or  purposes  of 

the  tax,  nor  does  it  declare  how  the  revenue  to  be  derived  there- 
under is  to  be  applied.  Accordingly,  held,  that  the  act  is  repug- 
nant to  the  provisions  of  section  175  of  the  State  constitution, 
and  therefore  void. 

3.  Held,  further,  that  it  cannot  be  sustained  as  a  measure  of  police 

regulation  after  the  revenue  features  of  the  act  are  eliminated 
as  unconstitutional. 

(Syllabus  by  the  Court.) 


Mii 


Appeal  from  District  Court  of  Grand  Forks  County;  Fisk, 
Judg:. 

Simon  Klectzen  was  accused  of  peddling  without  a  license. 
A  demurrer  to  tlie  information  being  sustained,  the  State  ap- 
peals.   AfHrmed. 


Lcdi'u  Goihrie,  for  the  State. 

Bosard  &  Bosard  and  Templeton  <0  Rex,  for  the  respondent. 


1^  »,< 


Wali.in,  J.  Upon  the  record  in  this  case,  the  sole  question 
which  is  presented  for  the  decision  of  this  court  is  whether  a 
certain  statute  is  a  constitutional  and  valid  enactment.  Tlie 
statute  in  question  was  enacted  at  the  late  session  of  the  legis- 
lative assembly  of  this  State,  and  is  entitled  as  follows:  ''An 
r-tct  taxing  the  occupation  of  hawking  and  peddling,  and  regu- 
lating the  licensing  of  persons  engaged  in  stich  occupation." 
The  statute  contains  seven  sections,  the  several  provisions  of 
which  may  be  summarized  as  follows:  Section  1  forbids  ped- 
dling in  any  county  in  this  State  without  first  obtaining  a  li- 
cense so  to  do  from  the  county  auditor.    Section  2  requires  per- 


STATE  r.  KLECTZEN. 


825 


sons  desiring  a  license  to  peddle  in  any  county  to  make  a  writ- 
ton  application  to  the  auditor  of  siicli  county  for  a  license,  and 
to  state  "in  what  manner  the  applicant  desires  to  travel  as  a 
peddler,  whether  on  foot,  or  with  one  or  more  horses  or  other 
boasts  of  burden."  Section  3  is  as  follows:  "Each  applicant, 
liofore  he  shall  bo  entitled  to  such  license,  shall  pay  into  the 
counly  treasury  of  the  county  where  such  application  is  made, 
the  following  sums  respectively  as  and  for  the  taxes  due  from 
him  on  account  of  the  pursuit  of  the  occupation  of  peddling, 
to  wit:  If  for  a  license  to  travel  on  foot  the  sum  of  $25 ;  if  for 
a  licence  to  travel  and  carry  his  goods  with  a  single  horse,  or 
other  beast  carrying  or  drawing  a  burden,  the  sum  of  $100 ;  if 
for  a  license  to  travel  with  a  vehicle  or  carriage  drawn  hy  two 
or  more  horses,  or  other  animals,  the  sum  of  $150.  Said  li- 
cense shall  authorize  the  holder  thereof  to  pursue  within  said 
county  the  business  of  hawking  and  peddling  in  the  manner  set 
forth  in  said  license  for  the  period  of  one  year  from  the  date  of 
its  issue,  and  no  longer."  Section  4  requires  the  auditor,  upon 
filing  a  written  application  for  such  license,  together  with  the 
treasurer's  receipt  for  the  proper  fee,  to  grant  a  license  to, 
poildle  in  such  county  for  the  period  of  one  year,  and  for  no 
other  or  shorter  period.  Section  5  requires  the  auditor  to 
make  a  certain  record  of  the  transaction.  Section  6  imposes 
criminal  penalties  for  peildling  in  any  county  without  such  li- 
cense, and  the  same  penalties  are  prescribed  for  the  offense  of 
refusing,  upon  request,  to  produce  such  license  for  examina- 
tion. Section  7  declares  that  "nothing  contained  in  this  ar- 
ticle shall  be  so  construed  as  to  impair,  interfere  with  or  take 
away  any  existing  rights  or  authority  of  incorporated  cities, 
towns  and  villages  to  license  and  regulate  peddleni  »*'ithin  their 
incorporated  limits." 

Counsel  contend  that  this  statute  is  unconstitutional  as  a 
taxing  measure,  in  this :  that  it  violates  section  17C  of  the  State 
constitution,  which  provides  thai;  "laws  shall  be  passed  taxing 
hy  uniform  rule  all  property  according  to  its  true  value  in 
money;"  and  in  support  of  this  point  counsel  cite  the  case  of 
^Villis  V.  Oil  Co.  (Minn.),  52  N".  W.  Rep.  G52;  also,  from  tho 
same  State,  the  case  of  Minces  v.  Shocnig,  75  N.  "W.  Rep.  711. 
In  both  of  these  cases  the  court  was  considering  a  provision  of 


320 


AMERICAN  CRIMINAL  REPORTS. 


m 


the  constitution  of  the  State  of  Minnesota  which  is  practically 
the  same  as  section  176  of  the  constitution  of  North  Dakota. 
The  first  case  cited  arose  under  a  statute  which  authorized  a., 
inspection  of  illuminating  oils,  and  required  that  certain  in- 
spection fees  should  be  paid  by  the  owner  for  inspecting  the  oil. 
The  court  upheld  this  statute  as  a  police  regulation,  and  stated 
that  the  law  could  not  be  sustained  as  a  taxing  measure,  because 
it  would  run  counter  to  the  provision  of  the  constitution  of  that 
State,  "requiring  taxes  to  be  as  nearly  equal  as  may  be  and  to 
be  levied  on  a  cash  valuation."  Const.,  art.  9,  §  1.  The  fees 
for  inspecting  the  oil,  if  regarded  as  a  tax  upon  the  oil,  would 
be  a  tax  which  would  not  be  uniform,  and  one  also  not  based 
upon  the  value  of  the  property.  In  the  other  ^linnesota  case 
(a  city  ordinance  requiring  auctioneers  to  pay  a  license  fee  for 
the  privilege  of  selling  certain  classes  of  goods,  and  in  addition 
to  pay  a  per  cent,  upon  the  gross  sales  of  such  goods)  the  court 
said,  in  effect,  that  the  requirement  to  pay  a  per  cent,  on  the 
sales  was  a  tax  upon  the  property  sold,  and  was  void  as  a  tax, 
because  it  was  not  uniform,  and  was  not  based  upon  any  cash 
valuation;  biit  the  other  feature  of  the  ordinance  was  sustained. 
We  regard  neither  of  these  cases  as  being  in  point,  becau*'"  the 
statute  under  consideration  nowhere  attempts  to  lay  a  t^ix  iipon 
propcrt}',  and  from  this  it  follows  that  constitution^  restric- 
tions upon  legislation  imposing  taxes  upon  property  are  inap- 
plicable to  the  statute  in  question.  In  our  judgment,  the  act 
under  consideration,  in  so  far  as  it  may  be  called  a  tax  law,  is 
an  occupation  tax  law,  framed  to  derive  revenue  from  the  occu- 
pation of  peddling,  and  hence  the  same  is  not  restricted  by 
the  constitutional  requirement  of  valuation  and  of  uniformity. 
Cooley,  Taxation,  570;  25  Am.  &  Eng.  Enc.  Law,  p.  480,  and 
notes  2,  3.  It  is  our  opinion  that  this  law  was  enacted  to  effect 
a  twofold  purpose:  It  seems  to  be  designed  both  as  a  revenue 
measure,  and  as  a  means  of  regulating  the  occupation  of  ped- 
dling; and  in  this  double  aspect  the  statute  is  referable  both  to 
the  police  power  inherent  in  the  State,  and  the  authority  to  im- 
pose taxes.  It  is  tnie  that  many  cases  can  be  found  holding 
that  subordinate  political  bodies,  which  have  no  original  and  in- 
herent i)ower  of  taxation,  are  without  authority  to  tax  an  occu- 
pation under  a  charter  delegating  the  right  to  regulate  only; 


STATE  r.  KLECTZEN. 


327 


Lnt  ■with  the  sovereign  State,  which  possesses  plenary  power, 
unless  expressly  restricted  by  organic  law,  both  to  tax  and  to 
regulate,  there  is  no  such  limitation  of  authority.  Hence  it  is 
that  laws  are  sometimes  passed  to  accomplish  the  double  pur- 
pose of  regulation  and  revenue.  See  Kitson  v.  Mayor,  etc.,  20 
Mich.  325 ;  Cooley,  Taxation  (2d  ed.),  pp.  570,  597.  A  license 
measure  may  include  a  taxing  measure,  or  it  may  not.  If  its 
chief  purpose  is  clearly  to  regulate,  and  nothing  else,  it  then 
falls  within  the  police  power.  In  such  cases  the  exaction  must 
not  be  any  greater  than  is  necessary  to  effect  the  primary  object 
in  view,  viz.,  regulation.  Mays  v.  City  of  Cincinnati,  1  Ohio 
St.  208.  This  rule  is  well  C'tablished;  but  the  matter  of  regu- 
lation may  embrace  more  than  a  mere  license  fee,  and  include 
expenses  which  are  incidental  and  indirect  as  well  as  those 
dourly  growing  out  of  the  business  license.  See  the  llinnesota 
cases  above  cited.  And  in  the  case  of  Minces  v.  SJweni;/,  supra, 
the  court  uses  the  following  significant  language :  "The  very  fact 
tliat  a  license  is  required  tends  to  exclude  dishonest  or  other- 
wise unfit  persons  from  conducting  such  sales."  This  is  equiva- 
lent to  holding  that  the  exaction  of  a  license  fee  is  in  itself  a 
police  regulation,  and  we  think  that  such  fee  might  be  very 
efficient  as  a  police  regulation,  under  this  statute,  as  tending  to 
diminish  the  number  of  persons  who  Avould  engage  in  the  busi- 
ness of  peddling  and  hawking  within  the  State.  It  is  manifest 
that  one  of  the  purposes  of  the  stat\ite  is  to  regulate  the  busi- 
ness of  peddling.  The  act  grants  the  privilege  to  exercise  the 
calling  of  a  peddler,  upon  certain  conditioiiS,  and  withholds  the 
])rivilege  from  all  who  fail  to  ccmiply  with  siich  conditions.  In 
tliis  as])ect,  it  is  a  measure  of  regulation.  See  25  Am.  &  Eng. 
Eue.  Law,  p.  15,  and  note  1 ;  Cooley,  Taxation,  p.  573.  ]\[ore- 
over,  as  has  been  seen,  there  are  certain  clearly  regulative  feat- 
ures embraced  in  the  act.  The  exaction  of  a  license  is,  in  our 
judgment,  designed  as  a  regulation,  and  the  requirement  that 
the  ])eddler  shall,  on  demand,  produce  his  license,  is  also  a  reg- 
uli'*^ive  feature;  and,  as  has  been  seen,  the  payment  of  a  fee, 
especially  as  in  this  case,  where  the  same  is  considerable  in 
amount,  would  certainly  tend  to  diminish  the  number  of  those 
engaging  in  the  business,  and  consequently  tend,  in  a  degree,  to 
restrict  and  regulate  the  bus'iiess. 


mi 


328 


AMERICAN  CRIMINAL  REPORTS. 


Whether  the  statute  is  also  designed  in  part  as  a  revenue-pro- 
ducing measure  is  perhaps  a  question  of  greater  difficulty,  but 
we  are  inclined  to  hold  that  it  was  so  designed.  In  the  first 
])lace,  it  may  be  said,  as  a  matter  of  common  knowledge,  that 
the  occupation  of  peddling  in  this  State  is  carried  on  by  a  cln-s 
of  transients  and  strangers,  who  usually  stay  in  one  community 
but  a  few  days,  and  rarely,  if  ever,  remain  in  any  county  for 
the  period  of  one  full  year.  In  view  of  this  well-known  cusidin, 
it  would  seem  that  a  license  for  a  much  shorter  period  than  a 
year — say  for  a  week  or  a  month — would  he  sufficiently  long  to 
accomplish  all  purposes  of  mere  police  re<5ulation.  This  Imv, 
however,  will  permit  no  license  to  be  issued  for  a  shorter  pprio(l 
than  twelve  months,  and  from  this  we  think  it  fair  to  infer  that 
the  matter  of  revenue  was  a  prominent  consideration  in  passing 
the  law.  But  the  terms  of  the  act  lead  to  the  same  conclusion. 
Section  3,  above  set  out,  requires  that  the  applicant  ''shall  ]iay 
into  the  county  treasury  of  the  county  where  such  application 
is  made  the  following  sums  respectively,  as  and  for  the  taxos 
due  from  him  on  account  of  the  pursuit  of  the  occupation  nf 
peddling."  This  explicit  declaration  hardly  leaves  room  for 
doubt  that  the  idea  of  revenue  by  taxation  was  prominently  be- 
fore the  lawmaker  in  enacting  this  statute.  But,  if  any  doul)t 
could  arise  on  the  point,  a  reference  to  the  title  of  the  act  will 
tend  to  dispel  such  doubt.  The  title  unmistakably  shows  the 
intention  to  tax  as  well  as  to  regulate.  We  do  not  feel  at  liberty 
to  override  the  express  language  of  the  law,  as  it  would  be  nec- 
essary to  do  if  we  construed  the  same  as  a  mere  police  regula- 
tion, to  the  exclusion  of  any  idea  of  revenue. 

This  brings  us  to  the  decisive  question  in  the  '^ase.  Cotmsol 
for  the  defendant  contends  that  this  statute  is  enacted  in  viola- 
tion of  the  jirovisions  of  section  175  of  the  State  constitution, 
which  reads  as  follows:  "No  tax  shall  be  levied  except  in  pur- 
suance of  law,  and  every  law  imposing  a  tax  shall  state  dis- 
tinctly the  object  of  the  same,  to  which  only  it  shall  be  applied."' 
As  we  have  said,  the  act  under  consideration  is  designed  in  part 
as  a  tax  law ;  and  as  such,  therefore,  it  must  be  construed,  in  so 
far  as  it  is  a  revenue-producing  measure.  -  An  examination  of 
the  law  reveals  the  fact  that  it  nowhere  states  the  object  of  the 
tax  which  the  law  exacts  from  the  peddler.  From  the  terms  of 
the  act,  ii,  cannot  be  ascertained  how  the  funds  to  be  derived 


STATE  V.  KLECTZEN. 


329 


from  it  are  to  be  applied,  or  to  what  objects  or  purposes  the 
same  are  to  be  devoted.  In  this  we  think  tiio  law  wholly  fails 
to  conform  to  the  requirements  of  the  constitution.  For  this 
reason  avo  shall  hold  that  it  is  void,  and  never  took  effect  as  a 
law.  It  is  obvious  that  it  cannot  stand  as  a  mere  measure  of 
police  regulation,  if  the  various  sums  named  in  it  cannot  be 
exacted  of  the  applicant  for  a  license.  By  the  terms  of  tlie  act, 
the  license  cannot  issue  until  the  tax  is  paid.  It  is  true  that 
section  3  of  the  statute  requires  the  license  tax  to  be  paid  into 
the  county  treasury.  But  this,  in  our  opinion,  falls  short  of  in- 
dicating the  object  of  the  tax.  All  taxes,  whether  State,  county, 
city,  or  school,  are  paid  into  the  county  treasury,  because,  under 
the  law,  the  treasurer  of  the  eoiinty  is  the  tax  collector  of  all 
classes  of  taxes ;  but  the  disposition  to  be  made  of  the  proceeds 
of  taxes  when  collected  depends  wholly  upon  the  terms  of  the 
law  under  which  each  is  levied  and  collected.  In  this  respect 
the  statute  in  question  is  wholly  silent.  The  provisions  of  sec- 
tion 175  of  the  State  constitution  are  clear  and  unambiguous, 
and  the  same  are  mandatory  upon  the  legislature,  and  hence  we 
arc  compelled  to  hold  that  the  statute  is  rei)ugnant  to  the  consti- 
tution. The  same  conclusion  has  been  reached  by  other  courts 
under  similar  constitutional  provisions.  Section  175  is  a  literal 
reproduction  of  section  5  of  article  12  of  the  constitution  of  the 
State  of  Ohio.  See  Pittshurg,  C.  &  St.  L.  By.  Co.  v.  Stale,  40 
Ohio  St.  189  (opinion,  198),  30  K  E.  Rep.  436.  In  the  case 
cited  the  coiirt  held  that  a  certain  statute,  which,  as  appeared, 
was  enacted  as  a  revenue  measure  by  the  legislature  of  Ohio, 
and  which  required  that  the  revenue  derived  under  it  should 
he  paid  into  the  State  treasury,  was  unconstitutional  because  It 
omitted  to  declare  the  object  or  purpose  of  the  tax.  This  case 
is  exactly  in  point  here.  See,  also,  to  the  same  effect,  ^Vcsling- 
haxiscn  v.  People,  44  Mich.  205,  G  ^N".  W.  Eep.  G41.  In  the  case 
last  cited  the  court  sustained  a  law  which  declared  that  a  tax 
sliould  be  placed  in  the  contingent  fund,  as  being  a  sutficicnt 
compliance  with  the  constitution  of  Michigan,  but  the  statute 
we  are  construing  contains  no  similar  provision  as  to  the  dis- 
])osition  of  the  funds  to  be  derived  under  it.  This  statute,  as 
has  boon  seen,  refers  to  no  fund.  The  judgment  of  the  district 
court  will  be  affirmed.    All  the  judges  concurring. 


330  AMERICAN  CRIMINAL  REPORTa 


KiRBT  V.  United  States. 

174  U.  S.  47—19  Sup.  Ct.  Rep.  574,  43  L.  Ed.  890. 

Decided  April  11,  1899. 

Constitutional  Law:    Statutes  in  derogation  thereof — Rights  of  ac- 
cused to  be  confronted  with  witnesses — Receiving  stolen  property. 

1.  A  statute  providing  tliat  a  judgment  of  conviction  against  any  per- 

son or  persons  for  embezzling,  stealing  or  purloining  any  money 
or  other  property  of  the  United  States  shall,  on  the  trial  of  one 
accused  of  receiving  such  property,  be  conclusive  evidence  that 
the  same  has  been  embezzled,  stolen  or  purloined,  is  violative  of 
the  clause  of  the  constitution  of  the  United  States  which  declares 
that  in  all  criminal  prosecutions  the  accused  shall  be  confronted 
with  the  witnesses  against  him. 

2.  The  case  against  the  receiver  of  stolen  property  is  separate  and 

distinct  from  that  of  the  principals  already  tried,  and  it  is  es- 
sential that  the  fact  that  the  property  was  stolen  should  be 
proved  in  each  case,  and  the  alleged  receiver  has  the  right  to  ex- 
amine the  witnesses  establishing  such  fact. 

3.  It  is  not  necessary  that  the  indictment  should  allege  the  owner- 

ship of  the  property  stolen  to  have  been  in  the  United  States  at 
the  time  of  the  felonious  receiving  thereof,  nor  to  allege  ths 
name  of  the  person  or  persons  from  whom  the  defendant  received 
the  same. 

j\Ir.  Assistant  AUorncy-General  Boyd,  for  the  United 
States. 

A.  G.  Safford,  for  the  plaintiff  in  error;  C.  0.  Bailey  and 
Joseph  Kirhy,  on  his  brief. 

Mr.  Justice  Harlan  delivered  the  opinion  of  the  court. 

The  plaintiff  in  error  Kirby  was  indicted  in  the  district  court 
of  the  United  S'^ntes  for  the  southern  division  of  the  district  of 
South  Dakota  under  the  act  of  Congress  of  March  3,  1875, 
ch.  144,  entitled  "An  act  to  punish  certain  larcenies,  and  the 
receivers  of  stolen  goods."    18  Stat.  479. 

The  first  section  provides  that  "any  person  who  shall  em- 
bezzle, steal  or  purloin  any  monf^y,  property,  record,  voiichcr  or 
valuable  thing  whatever  of  the  moneys,  goods,  chattels,  rwords 
or  property  of  the  United  States  shall  be  deemed  guilty  of 
felony,  and  on  conviction  thereof  before  the  district  or  circuit 
court  of  the  United  States  in  the  district  wherein  said  offense 
may  have  been  committed,  or  into  which  he  shall  carry  or  have 


KIRBY  V.  UNITED  STATEa 


331 


in  possession  said  property  so  embezzled,  stolen  or  purloined, 
shall  be  punished  tberefor  by  imprisonment  at  hard  labor  in 
the  penitentiary  not  exceeding  five  years  or  by  a  fine  not  ex- 
ceeding five  thousand  dollars,  or  both,  at  the  discretion  of  the 
court  before  which  he  shall  be  convicted." 

])y  the  second  section  it  is  provided  that  "if  any  person  shall 
receive,  conceal  or  aid  in  concealing,  or  have,  or  retain  in  his 
possession  with  intent  to  convert  to  his  own  use  or  gain,  any 
money,  property,  record,  voucher  or  valuable  thing  whatever, 
of  the  moneys,  goods,  chattels,  records  or  property  of  the  United 
States  which  has  theretofore  been  embezzled,  stolen  or  pur- 
loined, such  person  shall,  on  conviction  before  the  circuit  or 
district  court  of  the  United  States  in  the  district  wherein  he 
mny  have  such  property,  be  punished  by  a  fine  not  exceeding 
five  thousand  dollars  or  imprisonment  at  hard  labor  in  the  pen- 
itentiary not  exceeding  five  years,  one  or  both,  at  the  discretion 
of  the  court  before  which  he  shall  be  convicted;  and  such  re- 
ceiver may  be  tried  either  before  or  after  the  conviction  of  the 
principal  felon;  but  if  the  party  has  been  convicted,  then  the 
judgment  against  him  shall  be  conclusive  evidence  in  the  pros- 
ecution against  such  receiver  that  the  property  of  the  United 
States  therein  described  has  been  embezzled,  stolen  or  pur- 
loined."   IS  Stat.  479. 

The  indictment  contained  three  counts,  but  the  defendant 
was  tried  only  on  the  first.  In  that  count  it  Avas  stated  that 
Thomas  J.  Wallace,  Ed.  Baxter  and  Frank  King,  on  the  7th 
day  of  June,  IS'JG,  at  ITighmore,  within  the  jurisdiction  of 
the  court,  feloniously  and  forcibly  broke  into  a  postofiice  of  the 
United  States,  and  feloniously  stole,  took  and  carried  away 
therefrom  certain  moneys  and  property  of  the  United  States, 
to  wit :  3,750  postage  stamps  of  the  denomination  of  two  cents 
and  of  the  value  of  two  cents  each,  1,20G  postage  stamps  of  the 
denomination  of  one  cent  and  of  the  value  of  one  cent  each,  1-iO 
postage  stamps  of  the  denomination  of  four  cents  and  of  the 
value  of  four  cents  each,  250  postage  stamps  of  the  denomina- 
tion of  five  cents  and  of  the  value  of  five  cents  each,  SO  postage 
stamps  of  the  denomination  of  eight  cents  and  of  the  value  of 
eight  cents  each,  and  also  United  States  Treasury  notes,  na- 
tiiiual  bank  notes,  silver  certificates,  gold  certificates,  silver. 


332 


AMERICAN  CRIMINAL  HEPORTS. 


'*  I 


iiiokel  and  copper  coins  of  the  United  States  as  well  as  current 
money  of  the  United  States,  a  more  particular  description  of 
Avhich  the  grand  jury  were  unable  to  ascertain,  of  the  value  of 
$58.19;  and  that  the  persons  above  named  were  severally  in- 
dicted and  convicted  of  that  oiTcnse,  and  had  been  duly  sen- 
tenced upon  such  conviction. 

It  Avas  then  alleged  that  the  defendant,  on  the  9th  day  of 
June,  1S9G,  at  the  city  of  Sioux  Falls,  the  postage  stamps  "so 
as  aforesaid  feloniously  stolen,  taken  and  carried  away,  feloni- 
ously did  receive  and  have  in  his  possession,  with  intent  then 
and  there  to  convert  the  same  to  his  own  use  and  gain,  the  said 
Joe  Kirby  then  and  there  well  knowing  the  said  postage  stamps 
to  have  been  theretofore  feloniously  stolen,  taken  and  carried 
awav,  contrarv  to  the  form,  force  and  effect  of  the  statutes  of 
the  United  States  in  such  cases  made  and  provided  and  against 
the  peace  and  dignity  of  the  United  States." 

At  the  trial  of  Kirby  the  government  offered  in  evidence  a 
part  of  the  record  of  the  trial  of  Wallace,  Baxter  and  King, 
from  which  it  appeared  that  Wallace  and  Baxter,  after  sev- 
erally ]ileading  not  guilty,  withdrew  their  respective  pleas  and 
each  pleaded  guilty  and  was  sentenced  to  confinement  in  the 
penitentiary  at  hard  labor  for  the  tcnn  of  four  years.  It  ap- 
peared from  the  same  record  that  King,  having  pleaded  nrit 
guilty,  was  found  guilty  and  sentenced  to  the  penitentiary  at 
hard  labor  for  the  term  of  five  years. 

The  admission  in  evidence  of  the  record  of  the  conviction  of 
Wallace,  Baxter  and  King  was  objected  to  upon  the  ground 
that  the  above  act  of  March  3,  1875,  was  unconstitutional  so 
far  as  it  made  that  conviction  conclusive  evidence  in  the  prose- 
cution of  the  receiver  that  the  property  of  the  United  States  de- 
scribed in  the  indictment  against  him  had  been  embezzled, 
stolen  or  purloined.  The  objection  was  overruled,  and  the  rec- 
ord offered  was  admitted  in  evidence  with  exceptions  to  the  ac- 
cused. 

After  referring  to  the  provisions  of  the  act  of  ]\Iarch  3,  1875, 
and  to  the  indictment  against  Kirby,  the  court,  among  other 
things,  said,  in  its  charge  to  the  jury:  "In  order  to  make  out 
the  case  of  the  prosecution  and  in  order  that  you  should  be  au- 
thorized to  return  a  verdict  of  guilty  in  this  case,  you  must  fin<l 


KIRBY  V.  UNITED  STATES. 


333 


bovoml  a  reasonable  doubt  from  the  evidence  in  the  case  certain 
pi(>l)(.isition3  to  bo  true.  In  the  first  phice  it  must  be  found  by 
yuu  beyond  a  reasonable  doubt  that  the  property  described  iu 
the  indictment,  and  which  is  also  described  in  the  indictment 
iigainst  these  three  men  (Walhice,  liaxter,  and  King),  who  it 
is  alleged  have  been  convicted,  was  actually  stolen  from  the 
])(]8ti'ftice  at  Ilighmore,  was  the  property  of  the  United  States 
iiiid  iif  a  certain  value.  Second.  You  must  find  beyond  a  rea- 
siiiiable  doubt  that  the  defendant  Joseph  Kirby  received  or  had 
in  his  possession  a  portion  of  that  property  which  had  been 
st<tlen  from  the  postoffice  at  Ilighmore.  Third.  That  he  re- 
ceived or  had  it  in  his  possession  with  intent  to  convert  it  to 
his  own  use  and  gain.  Xow,  upon  the  first  proposition — as  to 
whether  the  property  described  in  the  indictment  was  stolen 
as  alleged  in  the  indictment, — the  prosecution  has  introduced 
in  evidence  the  record  of  the  trial  and  conviction  of  what  are 
known  as  the  principal  felons — that  is,  the  parties  who  it  is  al- 
leged committed  the  larceny.  Xow,  in  the  absence  of  any  evi- 
dence to  the  contrary,  the  record  is  sufficient  ]n'oof  in  this  case 
U]»)n  which  you  would  be  authorized  to  find  that  the  property 
alleged  in  the  indictment  was  stolen  as  alleged ;  in  other  words, 
it  makes  a  prima  facie  case  un  the  part  of  the  government  which 
niu*t  stand  as  sufficient  proof  of  the  fact  until  some  evidence 
is  introduced  showing  the  contrary,  and,  there  being  no  such 
evidence  in  this  case,  you  will,  no  doubt,  have  no  trouble  in 
cdiiiing  to  a  conclusion  that  the  property  described  in  the  indict- 
ment was  actually  stolen,  as  alleged,  from  the  postoffice  at  Iligli- 
inore.  But  I  don't  want  you  to  understand  me  to  say  that  that 
record  proves  that  the  stamps  that  Avere  found  in  Kirby's  pos- 
session were  stolen  property,  or  that  they  were  the  stamps  taken 
from  the  Ilighmore  postoffice.  Upon  the  further  proposition 
that  the  court  has  suggested,  after  you  have  found,  by  a  careful 
consideration  of  all  the  evidence,  beyond  a  reasonable  doubt, 
that  the  property  alleged  in  the  indictment  was  stolen,  then  you 
will  proceed  to  consider  whether  or  not  the  defendant  ever  at 
any  time,  either  on  the  date  alleged  in  the  indictment  or  any 
other  date  within  three  years  previous  to  the  finding  of  the  in- 
dictment, had  in  his  possession  or  received  any  of  this  property 
which  was  stolen  from  the  postoffice  of  Ilighmore.     Xow,  iu 


m 

^^ 

^H?'i 

1 

1  i 

1 

j 

1 

334 


AMEIUCAN  CRIMINAL  REPORTS. 


!4! 


M  * 


order  to  fiml  the  defendant  guilty  of  the  offense  clmrffcd  in  the 
indictment,  you  would  have  to  find  beyond  a  reasonaldc  dnulit 
from  nil  the  evidence  that  he  cither  actually  received  a  pnrtinn 
or  all  of  the  property  which  was  stolen  from  the  postolKcc  Mt 
Ilighmore,  and  that  he  received  that  property  from  the  thief  or 
thieves  who  committed  the  theft  at  the  Ilighmore  postotRcc  ni- 
some  agent  of  these  thieves.  The  statute  punishes,  you  will 
observe,  both  the  receipt  of  the  stolen  property,  knowing  it  io 
have  been  stolen,  with  the  intent  described  in  the  statute,  mid 
also  the  having  in  the  possession  such  property,  knowing  it 
to  have  been  stolen,  with  the  intent  to  convert  it  to  the  person's 
own  use  or  gain.  If  you  find  beyond  a  reasonable  doubt  that 
any  of  the  property  which  was  stolen  at  the  postoffice  at  High- 
more  was  actually  received  or  had  in  the  possession  of  the  de- 
fendant, then  you  cannot  convict  unless  you  further  find  that 
the  defendant  had  the  property  in  his  possession  or  received  it 
from  the  thief  or  his  agent,  knowing  at  the  time  that  it  was 
stolen  property.  Now,  upon  the  question  of  whether  the  de- 
fendant knew  that  it  was  stolen  property,  you  will,  of  cours", 
consider  all  the  evidence  in  the  case.  You  have  the  right  to 
find  that  the  person  or  the  defendant  knew  that  it  was  stolen 
property  from  the  admissions  he  may  have  made,  if  he  made 
any,  if  there  is  such  evidence  in  the  case,  or  from  other  circum- 
stances that  you  would  have  the  right  to  infer  that  he  did  know. 
Now,  if  a  person  received  property  under  such  circumstances 
that  would  satisfy  a  man  of  ordinary  intelligence  that  it  was 
stolen  property,  and  you  further  find  beyond  a  reasonable  doid)t 
that  he  actually  did  believe  it  was  stolen  property,  then  yo\i 
have  a  right  to  infer  and  find  that  at  the  time  of  the  receipt  of 
the  property  the  person  knew  that  it  was  stolen.  Now,  the  next 
point  in  the  case  is  in  regard  to  the  intent  the  defendant  had 
in  regard  to  the  use  or  disposal  of  the  property.  The  statute  re- 
quires that  this  receipt  of  stolen  property,  knowing  it  to  have 
been  stolen,  must  also  be  with  the  intent  to  convert  it  to  the 
use  of  the  party  in  whose  possession  it  is  found.  There  are  stat- 
utes which  simply  punish  the  knowingly  receiving  stolen  prop- 
erty. That  was  the  common  law.  But  this  statute  has  added 
this  further  ingredient,  that  it  must  be  done  with  the  intent  to 
convert  it  to  the  party's  own  use  and  gain.    It  was  probably  put 


KIRDY  V.  UNITED  STATEa 


335 


in  for  the  reason  that  the  statute  goes  further  than  the  comnion 
law,  iiuikiiig  it  punishable  to  conceal  or  aifl  in  concealing  with 
intent  to  convert  it  to  his  own  use  and  gain.  Now,  all  these 
l)ropositions  that  I  have  charg<^d  must  be  made  out  by  the  prose- 
cut  inn,  of  course,  beyond  a  reasonable  doubt,  and  in  case  you 
liiivc  a  reasonable  doubt  of  any  of  these  ingredients,  it  will  be 
ytiur  duty  to  acquit  the  defendant." 

In  response  to  a  request  from  the  jury  to  be  further  in- 
structed, the  court,  after  referring  to  the  indictment  and  to  the 
second  section  of  the  act  of  1875,  said:  "This  indictment  docs 
not  contain  all  the  words  of  the  statute.  This  indictment 
cluu'gcs  the  defendant  with  having,  on  the  0th  day  of  June, 
1S!)(!,  received  and  had  in  his  possession  those  postage  stamps 
that  wore  stolen  from  the  United  States  at  Ilighmoro.  Xow,  if 
you  should  find  beyond  a  reasonable  doubt  from  all  the  testi- 
mony in  the  case,  in  the  first  place,  that  the  postage  stamps 
mentioned  in  the  indictment,  or  any  of  them,  were  stolen  from 
the  postofHce  at  Ilighmore  by  these  parties  who  it  is  alleged  did 
steal  them,  and  you  further  find  beyond  a  reasonable  doul)t  that 
these  postage  stamps,  or  any  portion  of  them,  were  on  the  9th 
(lay  of  June,  1896,  received  by  the  defendant  from  the  thieves 
or  their  agent,  knowing  the  same  to  have  been  so  stolen  from 
the  United  States  by  these  parties,  with  the  intent  to  convert 
the  same  to  his  use  and  gain,  or  if  you  find  beyond  a  reasonable 
doubt  that  they  were  so  stolen  at  the  Ilighmore  postofiice,  as  I 
have  stated,  and  that  the  defendant,  on  or  about  the  9th  day  of 
June,  had  them  in  his  possession,  or  any  portion  of  them,  know- 
ing the  same  to  have  been  so  stolen,  with  the  intent  to  convert 
the  same  to  his  own  use  and  gain,  and  you  will  find  all  these 
facts  beyond  a  reasonable  doubt,  you  would  be  authorized  to  re- 
turn a  verdict  of  guilty  as  charged." 

The  jury  returned  a  verdict  of  guilty  against  Kirby.  The 
exceptions  taken  by  him  at  the  trial  were  sufficient  to  raise  the 
questions  that  will  presently  be  considered. 

As  shown  by  the  above  statement,  the  charge  against  Kirby 
was  that  on  a  named  day  he  feloniously  received  and  had  in  his 
possession  with  intent  to  convert  to  his  own  use  and  gain  certain 
personal  property  of  the  United  States,  theretofore  feloniously 
stolen,  taken  and  carried  away  by  Wallace,  Baxter  and  King, 


ll 


ill 


I  IIP  'ii 


1 


*=■•■-!>■ 


I  ji 


i 


il 


111 
hi 


ii 


ni  -I 


33G 


AMEUICAN  CRIMINAL  REPORTS. 


■\vlio  had  boon  imlictctl  niul  convicted  of  the  offense  alleged  to 
hiivc  been  comniitted  hy  them. 

!Xot\vithstnndiiig  the  conviction  of  Wallaco,  Eaxter  and  Kiiij;, 
it  was  incumbent  upon  the  government,  in  order  to  sustain  iis 
chnrjic  against  Kirby,  to  establish  beyond  reasonable  doubt 
(1)  that  the  property  described  in  the  indictment  was  in  fnct 
stolen  from  the  United  States;  (2)  that  the  defendant  receive  1 
or  retained  it  in  his  possession,  with  intent  to  convert  it  to  his 
own  use  or  gain;  and  (3)  that  ho  received  or  retained  it  wiih 
knowledge  that  it  had  been  stolen  from  the  United  States. 

Ifow  did  the  government  attempt  to  prove  the  essential  fact 
that  the  property  was  stolen  from  the  United  States.  In  no 
other  way  than  by  the  production  of  a  record  showing  the  cmi- 
victiou  under  a  separate  indictment  of  Wallace  and  IJaxtcr, 
resting  wholly  upon  their  respective  pleas  of  guilty,  while  the 
judgment  against  King  rested  upon  a  trial  and  verdict  of  guilty. 
With  the  record  of  those  convictions  out  of  the  present  case, 
there  waa  no  evidence  whatever  to  show  that  the  property  al- 
leged to  have  been  received  by  Kirby  was  stolen  from  the  Unitctl 
States. 

We  are  of  the  opinion  that  the  trial  court  erred  in  admitting 
in  evidence  the  record  of  the  convictions  of  Wallace,  Baxter 
and  King,  and  then  in  its  charge  saying  that,  in  the  absence  of 
proof  to  the  contrary,  the  fact  that  the  property  was  stolen  from 
the  United  States  was  sufficiently  established  against  Kirby  by 
the  mere  production  of  the  record  showing  the  conviction  of  the 
principal  felons.  Where  the  statute  makes  the  conviction  of  the 
principal  thief  a  condition  precedent  to  the  trial  and  punish- 
ment of  a  receiver  of  the  stolen  property,  the  record  of  the  trial 
of  the  former  would  be  evidence  in  the  prosecution  against  the 
receiver  to  show  that  the  principal  felon  had  been  convicted ; 
for  a  fact  of  that  nature  could  only  be  established  by  a  record. 
The  record  of  the  conviction  of  the  principals  could  not,  how- 
ever, be  used  to  establish,  against  the  alleged  receiver,  charged 
with  the  commission  of  another  and  substantive  crime,  the  es- 
sential fact  that  the  property  alleged  to  have  been  feloniously 
received  by  him  was  actually  stolen  from  the  United  States. 
Kirby  was  not  present  when  Wallace  and  Baxter  confessed  their 
crime  by  pleas  of  guilty,  nor  when  King  was  proven  to  be  guilty 


KIRBY  t'.  UNITED  STATES. 


337 


liv  \vitno?.sort  wli )  porsoiially  testified  before  the  jury.  Xor  was 
Kirliv  entitled  of  right  to  pnvtieijtnto  in  tlie  trial  of  the  prinei- 
jiiil  felons.  If  present  at  that  trial  he  wonld  not  have  heen  per- 
mitted to  examine  Walhiee  and  JJaxter  upon  their  pleas  of 
jruilty,  nor  cross-cxatnine  the  witnesses  introdueed  against  King, 
nnr  inlitxluee  witnesses  to  prove  that  they  were  not  in  fact 
guilty  "f  the  offense  charged  against  them.  If  he  had  sought 
to  do  either  of  those  things — even  upon  the  ground  that  the  eon- 
victidU  of  the  princij)al  fcdons  might  be  taken  as  establishing 
jirima  foric  a  vital  fact  in  the  separate  prosecution  against  him- 
self as  the  receiver  of  the  property, — the  court  would  have  in- 
fiiniu'd  him  that  he  was  not  being  tried  and  conld  not  be  ])er- 
niitted  in  anywise  to  interfere  with  t'.ie  trial  of  the  princi]»al 
f'cldus.  And  yet  the  court  below  instructed  the  jury  that  the 
cniivictinn  of  the  principal  felons  upon  nn  indictment  against 
tliciii  alone  was  sufKeient  prima  facUi  to  show,  as  against  Kirby, 
indicted  for  another  offense,  the  existence  of  the  fact  that  the 
])ropcrty  was  st<den — a  fact  which,  it  is  conceded,  the  United 
States  was  bound  to  establish  beyond  a  reasonable  doubt  in 
order  to  obtain  a  verdict  of  guilty  against  him. 

One  of  the  fundamental  gi.arantees  of  life  and  liberty  is 
found  in  the  sixth  amendment  of  the  constitution  of  the  Unitecl 
States,  which  provides  that  "in  all  criminal  prosecutions  the 
accused  shall  ...  be  confronted  with  the  witnesses  against 
liiii;  "  Instead  of  c«nfronting  Kirby  with  witnesses  to  establish 
the  vital  fact  that  the  property  alleged  to  have  been  received 
by  liiin  had  been  stolen  from  the  United  States,  he  Avas  con- 
fronted only  with  the  record  of  another  criminal  pi'osecution, 
with  which  he  had  no  connection  and  the  evidence  in  which  was 
not  given  in  his  presence.  The  record  showing  the  result  of  the 
trial  of  the  principal  felons  was  undoubtedly  evidence,  as 
against  them,  in  respect  of  every  fact  essential  to  show  their 
guilt.  l)Ut  a  fact  which  can  be  primarily  established  only  by 
witnesses  cannot  be  proved  against  an  accused — charged  with 
a  different  offense  for  which  he  may  be  convicted  without  ref- 
erence to  the  principal  offender, — except  by  Avitnessos  who  con- 
fiont  him  at  the  trial,  upon  whom  he  can  look  while  being  tried, 
whom  he  is  entitled  to  cross-examine,  and  Avhose  testimony  ho 
niay  impeach  in  every  mode  authorized  by  the  established  rules 
VouXI-3a 


If  1 


33S 


AMERICAN  CRIMINAL  REPORTS. 


^,! 


M    < 


■ii    <,i^ 


governing  tlio  trial  or  eondnct  of  criminal  oases.  The  presuuii)- 
tion  of  tlio  innocence  of  an  accused  attends  liiui  tliroiighout  tlic 
trial,  and  has  relation  to  every  fact  'aiat  nnist  be  established  in 
order  to  prove  his  guilt  l)eyond  reasonable  doubt.  "This  pre- 
sumption," this  court  has  said,  "is  an  instrument  of  proof  cre- 
ated bv  the  law  in  favor  of  one  accused,  ■whereby  his  innocen((> 
is  established  until  siifficient  evidence  is  introduced  to  ovcrcitiiK! 
the  proof  which  the  law  has  created."  Co/fin  v.  Uniled  IStitlcs, 
15G  U.  S.  432,  459.  But  that  presumption  in  Kirby's  case  wn-; 
in  effect  held  in  the  court  below  to  bo  of  no  consequence;  for, 
as  to  a  vital  fact  which  the  government  was  bound  to  establisli 
affirmatively,  he  was  put  upon  the  defensive  almost  from  the 
outset  of  the  trial  by  reason  alone  of  what  appears  to  have  Ix'cu 
said  in  another  criminal  prosecution  with  which  he  was  nnt 
connected  and  at  which  he  was  not  entitled  to  be  represciiti^d. 
Tn  other  words,  the  United  States  having  secured  the  c<uivictinu 
of  Wallace,  Baxter  and  King  as  principal  felons,  the  defendant 
charged  by  a  separate  indictment  with  a  different  crime — tli.it 
of  receiving  the  propert}'  in  question  with  knowledge  that  It 
was  so  stolen  and  wih  intent  to  convert  it  to  his  oavu  use  <ir 
gain — was  ludil  t(.  be  presumptively  or  pritna  facie  guilty  so  far 
as  the  vital  fact  of  ilie  property  having  been  stolen  was  con- 
cerned, as  soon  as  the  government  produced  the  record  of  such 
conviction  and  Avithout  its  nuiking  any  proof  whatever  In-  wit- 
nesses confronting  the  accused  of  the  existence  of  such  vital  fad. 
We  cannot  assent  to  this  view.  We  could  not  do  so  without  cnii- 
ceding  the  power  of  the  legislature,  when  prescribing  the  effci-r 
as  evidence  of  the  rec(jrds  and  proceedings  of  courts,  to  impair 
the  very  substance  of  a  right  long  deemed  so  essential  for  the 
due  protection  of  life  and  liberty  that  i;  is  guarded  against 
legislative  and  judicial  action  by  provisions  in  the  constitution 
of  the  United  States  and  in  the  constitutions  of  most  if  not  of 
all  the  States  composing  the  Union. 

This  precise  question  has  never  been  before  this  court,  ami 
we  are  not  aware  of  any  adjudged  case  which  is  in  all  respects 
like  the  present  one.  But  there  are  adjudications  which  proceed 
upon  grouvids  that  point  to  the  conclusion  reached  by  us. 

A  leading  case  is  Bex  i\  Turner,  1  Moody's  Crown  Cases, 
347.     In  that  case  the  prisoner  was  indicted  for  feloniously  rc- 


( 


KIRBY  V.  UNITED  STATES. 


330 


cciviiig  from  one  Sarah  Rich  certain  goods  and  chattels  theroto- 
forr"  feloniously  stolen  by  her  from  one  ^^fartha  Clarke.  At  the 
trial  hefore  ^Iv.  Jnstice  Patteson  it  was  proposed  to  prove  a 
confession  of  Sarah  Rich,  made  bofcn-e  a  magistrate  in  the  pres- 
o\\(v  of  the  prisoner,  in  which  she  stated  various  facts  impliciit- 
iiig  the  prisoner  and  others  as  well  as  herself.  The  evidence 
was  not  admitted,  hut  the  court  adnntted  other  evidence  of  what 
v'^arah  Rich  said  respecting  herself  only.  The  prisoner  v/as  con- 
victed and  sentenced.  The  report  of  the  case  proceeds:  ''] lav- 
ing since  learned  that  a  case  occurred  before  Mr.  Baron  Wood 
at  York,  Avhere  two  persons  Avere  indicted  together,  one  for 
i-tcaling  and  the  other  for  receiving,  in  which  the  principal 
])Ieaded  guilty  and  the  receiver  not  guilty,  and  that  ^Iv.  Raron 
Wood  refused  to  allov,-  the  plea  of  guilty  to  establish  the  fact 
of  the  stealing  by  the  principal  as  against  the  receiver,  the 
Icaiiicil  judge  thought  it  right  to  submit  to  the  learned  judges 
the  (|U('stion,  whether  he  was  right  in  admitting  the  confession 
of  Sarah  Rich  in  the  jiresent  case.  The  learned  judge  thought 
it  right  to  add  that  the  prisoner,  one  Taylor,  and  Sarah  Rich 
hail  iminediately  before  been  tried  upon  an  indictment  for  bur- 
glary, and  stealing  other  property  in  the  house  of  Mrs.  (Uarke 
on  the  night  of  the  22d  of  August;  and  that  Taylor  and  Rich 
liail  been  found  guilty,  but  the  prisoner  had  been  acquitted, 
llicre  being  no  proof  of  his  presence.  The  learned  judge  did 
not  pass  sentence  upon  Sarah  Rich  immediatel}';  but  a  new 
jury  was  called,  and  the  prisoner  was  tried  as  a  receiver,  so  that 
either  ])arty  might  have  called  her  as  a  witness.  In  Easter 
term,  1832,  all  the  judges  (except  Lord  Lyndhnrst,  C.  B.,  and 
Taunton,  J.)  met,  and  having  considei'cd  this  case,  were  nnani- 
niously  of  opinion  that  Sarah  Rich's  confession  was  no  evidence 
against  the  prisoner;  and  many  of  them  appeared  to  think  that 
had  Sarah  Rich  been  convicted,  and  the  indictment  against  the 
])risoiier  stated,  not  h(>r  conviction,  hut  her  guilt,  the  conviction 
would  not  have  ))een  any  evidence  of  her  guilt,  which  must  have 
been  proved  by  other  means ;  and  the  conviction  was  held 
wroug."  In  a  later  case,  KeahJe  v.  Payne,  8  Ad.  &  Ell.  r);").'), 
ntIO,  which  was  an  action  involving  a  question  as  to  the  admis- 
sion of  certain  evidence,  and  was  heard  in  the  Queen's  Bench 
before  Lord  Denman,  Chief  Justice,  and  Littledale,  Patteson 


^PT 


3iO 


AMERICAN  CRIMINAL  REPORTS. 


m  1 


and  Willicams,  Justices,  Mr.  Justice  Pattoson,  referring  to  Hex 
V.  Turner,  above  cited,  said:  "On  an  indictment  for  receiving 
goods  feloniously  taken,  the  felony  must  be  proved;  and  neitbcr 
a  judgment  against  a  felon,  nor  his  admission,  would  l)e  evi- 
dence against  the  receiver.  In  such  a  case  I  once  admitted  f'\  i 
deuce  of  a  plea  of  guilty  by  the  taker;  and  it  was  held  that  I  di'i 
wrong."  A  note  in  Starkie  on  Evidence,  p.  307,  is  to  this  ef- 
fect: "In  II.  V.  Turner,  1  Moo.  C.  C.  3-1-7;  L\  v.  UaicUffe,  1 
Lew.  v..  C.  l\2;Keablc  v.  Payne,  8  Ad.  &  E.  500  (35  E.  C.  L. 
R.  454),  it  is  stated  that  many  of  the  judges  (jill  the  judges 
except  two  being  assembled)  were  of  opTflion  tli!',i  the  record  of 
the  conviction  of  the  ])rincipal  would  not  be  evidence  of  the 
fact,  where  the  indictment  against  the  accessory  alleged  not  the 
conviction  but  the  g-uilt  of  the  princi])al.  And  on  principle  it 
would  seem  to  be  evidence  only  when  the  indictment  alleges  the 
conviction  of  the  prineii)al,  and  simply  to  support  that  allcfja- 
tion." 

The  leading  American  case  on  the  question  is  Commomvcalih 
V.  EJiflia,  3  Gray,  400.  The  indictment  was  for  receiving  stolon 
goods  knowing  them  to  have  been  stolen.  The  court,  speaking 
by  .Metcalf,  J.,  said:  "This  indictment  is  against  the  defend- 
ant alone,  and  charges  him  with  having  received  ])ropcrty  stolen 
by  J(.se})h  Elisha  and  William  Gigger,  kiu)wing  it  to  have  been 
stolen.  It  is  not  averred,  nor  was  it  necessiirv  to  aver  or  prov 
(Kev.  St.,  ch.  120,  par.  24),  that  they  had  been  convicted  of  the 
theft.  ]>ut  it  was  necessary  to  ])rove  their  guilt,  in  order  to 
Cduvict  the  defendant.  Was  the  record  of  their  conviction  im 
another  iiulictment  against  them  only,  upon  their  several  plca^i 
of  gnilty  to  a  charge  of  stealing  the  pntperty,  legal  evidence, 
againstr  the  defendant,  that  they  did  steal  it?  We  think  not, 
either  on  princii)le  or  authority.  That  conviction  was  res  inter 
alios.  The  defendant  was  not  a  party  to  the  proceedings,  ami 
had  no  opjwrtunity  nor  right  to  be  heard  on  the  trial.  And  it 
is  an  elementary  principle  of  justice,  that  <ine  man  shall  not  bo 
afTect('(l  by  another's  act  or  admission,  to  which  he  is  a  stranger. 
That  Cf»nviction  being  also  on  the  confession  of  the  jjarties,  the 
adjudge<l  cases  show  that  it  is  not  evidence  against  the  defend- 
ant. L'ex  V.  Turner,  1  .Moo.  C.  C.  347,  and  1  Lewin's  C.  C. 
Ill);  1  Greenl  Ev.,  par.  233;  llosc.  Crim.  Ev.  (2d  ed.)  50; 


KIRBY  V.  UNITED  STATES. 


Zil 


ncx 

viiig 

titllLT 

evi- 

s  ot'- 
J.  L. 


TJic  Slate  v.  Kcirport,  4  Ilavr.  (Del.)  5G7.  We  oxprcps  no 
(ipininn  conceniing  a  case  diflforing  in  any  particular  from  this, 
1)11 1  ciinfine  ourselves  to  the  exact  question  presented  by  these 
oxccptidns.  Our  decision  is  this,  and  no  more:  The  record  of 
tlio  conviction  of  a  thief,  on  his  plea  of  guilty  to  an  indictment 
jii!iiinst  him  alone  for  stealing  certain  property,  is  not  adinis- 
silde  in  evidence  to  prove  the  theft  on  the  trial  of  the  receiver 
(pf  that  pmjierty,  iipon  an  indictment  against  him  alone,  which 
(lues  not  aver  that  the  thief  has  been  convicted." 

To  the  same  general  effect  are  soido  of  the  text-writers, 
riiillips,  in  his  Treatise  on  the  Law  of  Evidi;nce,  referri'ig  to 
the  rule  as  to  the  admissibility  and  effect  of  verdicts  or  judg- 
ments ill  prosecutions,  say^  :  "A  record  of  conviction  of  a  prin- 
cipal ill  felony  has  been  admitted  in  some  cases,  not  of  modern 
date,  as  evidence  against  the  accessory.  B.  v.  Smiih,  Leach  Cr. 
C.  2SS;  R.  V.  Baldwin,  3  Camp.  2G5.  This  has  been  supported 
on  the  ground  of  convenience,  because  the  witnesses  against  the 
principal  might  be  dead  or  not  to  be  found,  and  on  the  presump- 
tion that  the  proceedings  must  be  taken  to  be  regular,  and  the 
guilt  of  the  convicted  party  to  lie  established.  Fost.  Disc,  iii, 
eh.  2,  s.  2,  p.  oC-i.  l»ut  this  is  not  strictly  in  accordance  with 
the  principle  respecting  the  admissibility  of  verdicts  as  evidence 
against  third  persons.  From  the  report  of  the  recent  case  of 
llox.  V,  Turner,  it  seems  that  a  record  of  conviction  of  a  prim 
cipal  in  the  crime  of  stealing,  wlu)  ])h':'ads  guilty,  wouhl  not  now 
be  received  as  evidence  of  the  guilt  of  the  princi[)al  against  the 
receivers  of  the  stolen  jiroperty,  or  the  accessory  after  the  fact; 
and  it  is  said  to  be  doubtful  whether  a  record  of  the  conviction 
of  the  principal  on  his  i)lea  of  not  guilty  would  be  admissible 
against  the  accessory.  As  proof  of  ilic  fact  of  convidlon,  tho 
record  would  be  admissible  and  conclusive,  but  it  seems  not  to 
be  admissible  evi<lence  of  the  (juilt  of  the  convict,  as  against  an- 
other person  charged  with  being  connected  with  him  in  crime, 
the  record  being  in  this  resjiect  res  inter  alios  acta.  It  is  evi- 
dence that  a  certain  person,  named  in  the  record,  was  convicted 
by  the  jury,  but  not  evidence  as  against  a  third  person,  sup- 
posed to  have  been  engaged  with  him  in  a  ]iarticular  transaction, 
as  to  the  ground  on  which  the  conviction  proceeded,  namely, 
that  the  convict  conmiitted  the  criminal  act  described  in  the 


vi 


'  Jr 


vi^n 


IF 


li  n\> 


\i 


ih  )  '? 


I     fif         ft 


I  <i< 


312 


AMERICAN  CRIMINAL  REPORTS. 


rceonl."  2  riiilHps'  Ev.  (.'id  ed.),  pp-  22,  23.  Taylor,  in  hk 
Treatise  on  Evidence,  after  stating  that  a  prisoner  is  not  liable 
to  be  aft'oeted  by  the  confessions  of  his  accomplices,  says:  ''So 
strictly  has  this  rule  been  enforced,  that,  where  a  person  was  in- 
dicted for  receiving  stolen  goods,  a  confession  by  the  princi]):il 
that  he  was  guilty  of  the  theft  was  held  b\'  all  the  judges  to  be 
no  evidence  of  that  fact  as  against  the  receiver  (i?.  v.  Turncv) ; 
and  the  decision,  it  seems,  woiild  be  the  same,  if  both  parties 
Avere  indicted  together,  and  the  principal  were  to  plead  guilty. 
(Id.)"    1  Taylor's  Ev.,  par.  S2G  (Cth  ed.). 

The  principle  to  be  deduced  from  these  authorities  is  in  h."r- 
mony  with  the  view  that  one  accused  of  having  received  stolen 
goods  with  intent  to  convert  them  to  his  own  use,  knowing  at  the 
time  that  the}'  were  stctlen,  is  not,  Avithin  the  meaning  of  tlio 
constitution,  confronted  Avith  the  Avitnesses  against  him,  avIkmi 
the  fact  that  the  gf)ods  Avere  stolen  is  established  simply  by  the 
record  of  another  criminal  case  Avith  Avhich  the  accused  had  ni> 
connection  and  in  Avhich  he  Avas  not  entitled  to  be  represents!  by 
counsel.  As  heretofore  stated,  the  crime  charged  arainst  AViil- 
lace,  Baxter  and  King  and  the  crime  charged  against  Kirby 
AA'ere  Avholly  distinct — none  the  less  so  because  in  each  case  it 
Avas  essential  that  the  government  should  prove  that  the  prop- 
erty described  Avas  actually  stolen.  The  record  of  the  proof  of 
a  vital  fact  in  one  prosecution  could  not  be  taken  as  proof  in  tlio 
other  of  the  existence  of  the  same  fact.  The  difficulty  Avas  not 
met  Avhen  the  trial  court  failed,  as  reciuired  by  the  act  of  IST."), 
to  instruct  the  jury  that  the  record  of  the  conviction  of  the  prin- 
cipal felons  Avas  conclusive  evidence  of  the  fact  that  the  prop- 
ertv  had  been  actually  stolen,  but  merelv  said  that  such  record 
made  a  prima  facie  case  as  to  such  fact.  The  fundamental 
error  in  the  trial  below  Avas  to  admit  in  evidence  the  record  of 
the  conviction  of  the  principal  felons  as  competent  proof  for 
any  purpose.  That  those  ])ersnns  had  been  convicted  Avas  a  fact 
not  necessary  to  be  established  in  the  case  against  the  alleged 
receiver;  for,  under  tlu;  statute,  he  could  be  prosecuted  even  if 
the  principal  felons  had  not  been  tried  or  indicted.  As  already 
stated,  the  effect  of  the  charge  Avas  to  enable  the  goA'ernment  to 
put  the  accused,  although  shielded  by  the  presumjjtion  of  inno- 
cence, upon  the  defensive  as  to  a  vital  fact  involved  in  the  charge 


KIRBY  I'.  UNITED  STATES. 


343 


flgiiinst  him  by  simply  producing  the  record  of  the  conviction 
of  otlier  parties  of  a  wliolly  different  offense  with  which  the  ac- 
QMH'd  had  no  connection. 

It  is  scarcely  necessary  to  say  that  to  the  rule  that  an  accused 
is  entitled  to  be  confronted  with  witnesses  against  him  the  ad- 
iiii«si(in  of  dying  declarations  is  an  exception  which  arises  from 
tlio  necessity  of  the  case.  This  exception  was  well  established 
hi'fore  the  adoption  of  the  constitution,  and  was  not  intended  to 
he  abrogated.  The  ground  upon  Avhich  such  exception  rests  is 
tliat,  from  the  circumstances  under  Avhich  dying  declarations 
lUf  uuide,  they  are  e(piivalent  to  the  evidence  of  a  living  wit- 
ness ujion  oath — "the  condition  of  the  party  who  made  them 
being  such  that  every  motive  to  falselioud  must  be  suppnsed  to 
have  been  silenced,  and  the  mind  to  be  impelled  by  the  most 
powerful  consideratiims  to  tell  the  truth."  Clyde  Mddox  v. 
I'uilrd  States,  14G  U.  S.  liO,  151;  Cooley's  Const.  Lim.  318; 
1  rhillips  on  Ev.,  ch.  7,  par.  0. 

For  the  reasons  stated,  it  must  be  held  that  so  much  of  the 
jiliiive  act  of  March  3,  1ST5,  as  declares  that  the  judgment  of 
cniivietiun  against  the  principal  felons  shall  be  evidence  in  the 
]ir(isecution  against  the  receiver  that  the  property  of  the  United 
Srntcs  allegetl  to  have  been  embezzled,  stolen  or  purloined,  is  in 
viii];ition  of  the  clause  of  the  constitution  of  the  United  States 
(lechu'ing  that  in  all  criminal  prosecutions  the  accused  shall  be 
c(Mifronte(l  with  the  witnesses  against  him.  Upon  this  ground 
the  ju<\:,;;!ont  nuist  l)e  reversed  and  a  new  trial  had  in  accord- 
ance with  law.  ]jut  as  the  case  must  go  l)ack  to  the  circuit  court 
{"V  another  trial,  it  is  proper  to  notice  other  (piestions  presented 
l»y  the  assignments  of  error. 

'llie  accused  contends  that  the  indictment  is  defective  in  that 
it  does  not  allege  ownership  by  the  Uniteil  States  of  I  he  stolen 
property  at  the  time  they  were  alleged  to  have  been  feloniously 
received  by  him.  This  c<intention  is  witliout  merit.  The  in- 
dictment alleges  that  the  articles  described  were  the  ]>roperty  of 
tlie  United  States  when  tliev  were  felonitmsly  stolen  .  n  the 
Ttir  day  of  June,  180(5,  and  tlint  the  defendant,  only  two  days 
tlierenfter,  >n\  the  Oth  day  of  .rune.  In'JH,  "the  postage  stam])s 
aforesaid  so  ns  aforesaid  loloiiiously  sttden,  taken  and  carried 
away,  feloniously  did  receive  and  have  in  his  possession,  with 


it, 


BU 


AMERICAN  CRIMINAL  REPORTS. 


Sj"  JaftV*  ■ 


^iffii'il 


i/t 


intent  tlion  and  there  to  convert  tlic  same  to  his  own  use  or  giiin, 
tlie  said  Joe  Kirby  then  and  there  well  knowing  the  said  pnshiiio 
stamps  to  have  been  theretofore  feloniously  stolen,  taken  ami 
carried  away."  The  stamps  alleged  to  have  been  feloniously  vo- 
ceived  by  the  accused  on  the  0th  day  of  June  are  thus  allegeij  i.i 
have  been  the  same  that  were  stolen  from  the  United  States  two 
days  previously.  The  larceny  did  not  change  the  ownershj]), 
and  it  must  be  taken  that  the  United  Slates  had  not  regained 
possession  of  the  stamps  before  they  were  received  by  Kirliy 
and  that  the  indictment  charges  that  they  were  out  of  the  pii>- 
session  of  the  United  States  and  stolen  property  when  they  caiiio 
to  the  hands  of  the  accused. 

.Another  contention  by  the  accused  is  that  the  indictment  wiis 
fatally  defective  in  not  stating  from  whom  the  defendant  re 
ceived  the  stamps.  This  contention  is  a])parently  supported  liy 
some  adjudications,  as  in  Slate  v.  Ires.  13  Ired.  o'-lS.  l>ut  upmi 
a  careful  reading  of  the  opinion  in  that  ca'o  it  will  be  fnuml 
that  the  judgment  rests  upon  the  grouml  that  the  statute  el" 
Kortli  Carolina,  taken  from  an  old  English  statute,  madt;  tlip 
receiver  of  st(den  goods  strictly  an  accessory  and  contcMuplatcil 
the  case  of  the  goods  being  received  from  the  person  v.ho  stnlc 
them.  As  already  stated,  the  act  of  Congress  upon  which  the 
present  indictment  rests  makes  the  receiving  of  stolen  propcil y 
of  the  United  States  with  the  intent  by  the  receiver  to  convert 
it  to  his  own  use  or  gain,  he  knowing  it  to  have  been  stolen,  a 
distinct,  substantive  felony,  fur  which  he  can  be  tried  eiiiier 
before  or  after  the  conviction  of  the  ])rincipal  felon,  or  whether 
the  latter  is  tried  or  not.  Under  such  a  statute  the  person  who 
stole  the  pro])erty  might  be  pardoned,  and  y(!t  the  receiver  could 
be  indicted  and  convicted  of  the  crime  committed  by  him. 
]]ishop,  in  his  Xew  Criminal  Urocedure,  says  that  while  sonu; 
American  cases  have  held  it  to  be  necessary  in  an  indictnienr, 
against  the  receiver  of  stolen  goods  to  state  from  whom  he  n- 
ceived  the  goods,  "conuuonly,  in  England  and  in  nundicrs  of 
our  States,  the  indictment  does  n(»t  aver  from  whom  the  stolen 
g-ootls  were  received."  Vol.  2,  par.  983.  Jiy  at\  English  stat- 
ute, 7  ^  8  Geo.  IV.,  June  21,  1S2T,  ch.  2!i,  jiar.  rA,  it  was 
enacteil  that  "if  any  nerson  shall  reccdve  any  cdnittel,  money, 
valuable  security  or  other  property  whatsoever  the  stealing  or 


KIRBY  V.  UNITED  STATES. 


315 


taking  wlioroof  shall  amount  to  a  felony  cltlier  at  common  law 
01'  bv  virtue  of  this  act.  such  person  knowing  the  same  to  have 
been  feloniously  stolen  or  taken,  every  such  receiver  shall  bo 
guilty  of  felony,  and  may  be  indicted  and  convicted  either  as 
an  accessory  after  the  fact,  or  for  a  substantive  felony,  and  in 
the  latter  case,  whether  the  principal  felon  shall  or  shall  not 
have  been  previonsh'  convicted,  or  shall  or  shall  not  be  amen- 
able to  justice,"  etc.  Under  that  statute  a  receiver  of  stolen 
goods  was  indicted.  It  was  objected  that  one  of  the  counts  did 
wA  state  the  name  of  the  principal,  or  that  he  was  unknown. 
Tindall,  C.  J.,  said  :  "It  will  do.  The  offense  created  by  the  act 
of  Parliament  is  not  the  receiving  stolen  goods  from  any  par- 
licidar  person,  but  receiving  them  knowing  them  to  have  been 
stolen.  The  question,  therefore,  will  be,  whether  the  goods  are 
stdlen,  and  whether  the  jirisoner  received  them  knowing  them, 
to  have  been  stolen.  Your  objection  is  founded  on  the  too  par- 
ticular form  of  the  indictment.  The  statute  makes  the  receiv- 
ing of  goods,  knowing  them  to  have  been  stolen,  the  offense." 
Jlrx  V.  Jcrvls,  0  C.  &  P.  1.50;  2  llussell  on  Crimes  (Gth  ed.), 
J.']().  In  Slale  r.  Hazard,  2  li.  I.  474,  an  indictment  charging 
the  accused  with  fraudulently  receiving  stolen  goods,  knowing 
them  to  have  been  stolen,  was  held  to  be  good,  although  it  did 
not  set  forth  the  name  of  any  jterson  from  whom  the  goods  were 
received,  nor  that  they  were  receix'ed  from  some  person  or  jier- 
sdus  unknown  to  the  grand  jurors.  "We  therefore  think  that 
the  objection  that  the  indictment  does  not  show  from  whom  the 
accused  received  the  stamps,  nor  state  that  the  name  of  such  per- 
son was  unknown  to  the  grand  jurcn-s,  is  not  well  taken.  If  the 
stamps  were  in  fact  stolen  "'"rom  the  I'nitccl  States,  and  if  they 
Were  received  by  tlie  accused,  no  matter  from  wlmm,  with  the 
intent  to  eon\ert  them  to  his  own  use  or  gain,  and  knowing  that 
tliey  had  been  st(deu  from  the  United  States,  he  could  be  found 
gui.ty  of  the  crime  chargecl  even  if  it  were  not  shown  by  the 
evidence  from  whom  he  received  the  stamps.  This  rule  cannot 
work  injustice  nor  dei>rive  the  accused  of  any  substantial  right. 
If  it  appears  at  the  trial  to  be  essential,  in  the  preparation  wf 
liis  defense,  that  he  should  know  ibe  name  of  the  ])erson  from 
wlmm  the  government  expected  to  prove  that  he  received  tlie 
stolen  property,  it  would  be  in  the  power  of  the  court  to  require 


3^6 


AMERICAN  CRIMINAL  REPORTS. 


the  prosecution  to  give  a  bill  of  particulars.  Coffin  v.  Unilcd 
Slates,  156  U.  S.  432,  452;  Boscn  v.  United  Stales,  IGl  U.  S. 
20,  25;  Commonwealth  v.  Giles,  1  Gray,  4GG;  Rose.  Crim.  Ev. 
(0th  ed.)  178,  179,  420. 

The  judgment  is  reversed,  and  the  case  is  remanded  ■with 
directions  for  a  new  trial  and  for  further  proceedings  consistent 
with  law. 


!Mr.  Justice  Brown  and  Mr.  Justice  McKenxa  dissented. 
Mr,  Justice  Brewer  did  not  participate  in  the  decision  of 
this  case. 


'.  5,  ii  r 


1!     -^ 


?» 


State  v.  Coucit. 

54  S.  C.  286—32  S.  E.  Rep.  408. 

Decided  February  28,  1899. 

CoxsTiTUTioNAL  Law:   Statute  providing  for  vague  indictments. 

A  statute  declaring  that  an  Indictment  may  use  tlie  words  "divers 
other  persons"  is  in  contravention  of  the  constitution,  which  re- 
quired that  the  accused  be  fully  informed  of  the  nature  and  cause 
of  the  accusation. 

Conviction  in  Pickens  Circuit  Court  for  selling  liquor.  De- 
fendant appeals. 

Mr.  J.  P.  Carey,  for  appellant. 
Solicitor  Ansel,  for  the  State. 

Pope,  J.  The  appellant  was  convicted  of  selling  a  quart  of 
liquor  to  Xowton  Gates,  under  an  indictment  cliarging  liiui 
with  the  sale  of  spirituous  liquors  to  "one  W.  S.  Newell,  R.  L. 
Bryant,  Robert  Ilolden,  G.  W.  Russell,  and  to  divers  other  per- 
sons to  the  jnrors  aforesaid  nnl-mnrn."  lie  appeals  from  the 
sentence  under  said  conviction  upon  several  grounds.  This 
court  does  not  doom  it  necessary  \(.  pursue  the  questions  pre- 
sented by  the  appellant  except  one  of  them,  for  it  :'s  important 
that  this  single  question  should  be  met.  We  hold  that  the  con- 
viction of  the  appellant,  under  this  indictment,  was  illegal,  be- 
cause opposed  to  the  constitution  of  the  State.     In  article  T,  sec- 


I 


STATE  V.  COUCa 


347 


tidii  18,  it  is  provided:  "In  all  criminal  prosecutions  the  ac- 
cused shall  enjoy  the  right  to  a  speedy  and  public  trial  by  an  ini- 
pnriiiil  jury,  a^id  to  he  fully  informed  of  the  nature  and  cause 
of  the  nceusatiop."  It  is  the  office  of  an  indictment  to  fully  dis- 
close to  the  accused  the  nature  and  cause  of  the  accusation. 
Aiiv  indictment  which  fails  to  fully  disclose  the  offense  to  the 
ncciisod  is  defective.  In  the  indictment  under  review,  in  the 
j)ii>s('nt  case,  it  will  be  observed  that  the  name  of  Xewton  Oatos 
does  not  appear  as  one  of  the  pei*sons  to  whom  the  defendant, 
apiioUiint,  is  charged  as  having  sold  intoxicating  liquors.  How- 
ever, it  is  sought  to  justify  the  absence  of  Oates'  name  from  the 
indictment  by  proof  that  the  defendant,  appellant,  sohl  him 
li(|U(ir,  which  sale,  luider  and  by  virtue  of  the  forty-third  section 
of  the  dispensary  act,  approved  in  1S9G  (22  Stat.  14S),  allow- 
ina-  an  indictment  to  contain  the  words  "to  divers  other  persons 
to  the  jurors  aforesaid  unknoM'n,"  was  punishable  just  as  if  the 
1111  MIC  of  Xewton  Oates  had  been  actually  set  forth  in  the  in- 
dictment. In  the  recent  case  of  The  State  r.  Jcffcoat,  ante, 
p.  IDTt,  this  court  held  that  in  an  indictment  where  these  words, 
"to  divers  other  persons  to  the  jurors  aforesaid  \uiknown," 
(H'ciii',  such  words  might  be  treated  as  surplusage  if  one  or  more 
persons  were  called  by  name,  and  the  persons  so  named  in 
the  indictment  were  on  trial.  This  last-named  case  is  prac- 
ticiilly  decisive  of  the  (piestion  raised  here.  The  forty-third 
section  of  the  dispensary  act  of  1S90,  authorizing  the  use  of  the 
Avnrds  "divers  other  persons,"  etc.,  cannot  be  made  to  override 
the  ('(institutional  re(]iiireiuent  that  every  accused  must  have 
his  (itl'cnse  fully  set  forth  in  the  indictment  or  pri^sentment  of 
the  grand  jury. 

It  is  the  judgment  of  this  court  that  the  judgment  of  the  cir- 
cuit court  bo  reversed. 


V 


■i ;, 


i'; 


NoTKs  (by  J.  F.  G.). — A  conspiracy  statute  in  Indiana  contained  the 
following  proviso:  "Provided,  that,  in  any  indictment  under  this  sec- 
tion, it  shall  not  be  necessary  to  charge  the  particular  felony  which 
it  was  the  purpose  of  such  person  or  persons,  or  the  object  of  each 
(such)  person  or  persons,  or  body,  association  or  combination  of  per- 
sons to  commit."  In  passing  upon  this  statute  the  Supreme  Court  of 
that  State,  Landringham  v.  The  State,  49  Ind.  ISd,  said:  "We  are  very 
clearly  of  the  opinion  that  the  proviso  is  in  conflict  with  the  constitu- 
tion, and  against  natural  right,  and  hence  Is  absolutely  void.     If  the 


348 


AMERICAN  CRIMINAL  REPORTS. 


1 


'•■1'" 


indictment  need  not  charge  the  partlonlar  felony  intenrlpd  to  ho  rnm- 
mltted,  the  accused  would  have  no  means  of  knowing,  before  the  trial 
commenced,  what  offense  he  was  charged  with,  and  consequently  would 
have  no  opportunity  of  preparing  for  his  defense.  The  question  was 
80  fully  considered  l-v  this  court  In  the  case  of  MvLaiif/hlin  r.  The 
»S7«/f,  45  Ind.  338,  that  we  do  not  deem  it  necessary  to  re-arguo  or  re- 
state it." 

In  the  McLaughlin  Case,  just  cited,  a  judgment  was  reversed  wiiU 
instructions  to  sustain  the  motion  to  quash  the  indictment.  The  in- 
dictment, like  that  In  the  South  Carolina  case,  was  Imsed  uimn  an 
act  regarding  the  sale  of  intoxicating  liquors.  In  reversing  the  ion- 
viction  the  court  said: 

"Any  person  who  is  the  keeper  of  any  room,  tavern,  eatlngliouso, 
bazaar,  restaurant,  drug  store,  grocery,  coffee-house,  cellar  or  otlior 
place  of  public  resort,  is  liable  to  be  j)rosecuted  under  this  section, 
and  if  the  form  used  in  this  case  is  sufflclent,  it  need  only  be  alleged 
that  liquors  were  sold  by  him  to  divers  persons.  How  is  he  to  proparo 
for  his  defense  against  such  a  charge?  Or,  if  he  shall  be  indicted  a 
second  time,  how  can  it  be  made  to  appear  that  he  has  already  boon 
arraigned  upon  the  same  charge?  There  is  no  country,  we  piesuino, 
where  the  principles  of  the  common  law  prevail,  and  the  liberty  of  ili'! 
citizen  is  respected,  where  the  State  is  not  required,  in  bringing  an 
alleged  criminal  into  court  to  answer  a  crime,  to  prefer  against  liini, 
in  the  form  of  an  affidavit,  information,  or  Indictment,  a  specific  ac- 
cusation of  the  crime  charged.  It  is  accordingly  provided  in  the  con- 
stitution of  the  State,  section  13,  article  1:  'In  all  criminal  prosecu- 
tions tlie  accused  shall  have  the  right  to  a  public  trial,  by  an  impartial 
jury,  in  the  county  in  which  the  offense  shall  have  been  comiiiittoii; 
to  bo  heard  by  himself  and  counsel;  to  demand  the  nature  and  cause 
of  the  accusation  against  him,  and  to  have  a  copy  thereof;  to  meet 
the  witnesses  face  to  face,  and  to  have  compulsory  process  for  obtain- 
ing witnesses  in  his  favor.'  The  accused  has  a  right  to  demand  the 
nature  and  cause  of  the  accusation  against  him,  and  to  have  a  copy 
thereof.  The  accusation  must  l)e  in  writing.  This  Is  necessarily  im- 
plied from  tlie  fact  that  the  acctised  has  a  right  to  have  a  copy  thereof. 
'The  nature  and  cause  of  the  accusation'  must  be  stated.  The  consti- 
tutional guaranties,  which  we  have  just  quoted,  are  of  the  utmost  im- 
portance to  a  person  accused  of  crime,  and  a  disregard  of  them,  or  any 
of  them,  even  in  a  prosecution  designed  to  suppress  a  traffic  so  full  of 
evil  as  that  of  retailing  intoxicating  liquors,  cannot  be  tolerated  wltii 
any  regard  to  the  proper  and  safe  administration  of  the  criminal 
laws." 

The  provision  of  a  statute  in  Illinois  reads  as  follows:  "Every  per- 
son who  shall  obtain,  or  attempt  to  obtain,  from  any  other  person  or 
persons,  any  money  or  property,  by  means  or  by  use  of  any  false  or 
bogus  checks,  or  by  any  other  means,  instrument  or  device,  commonly 
called  the  confidence  game,  shall  be  imprisoned  in  the  penitentiary 
not  less  than  one  year  nor  more  than  ten  years.  In  every  indictment 
under  the  preceding  section,  it  shall  be  deemed  and  held  a  suflicient 
(lescriptiou  of  the  offense  to  charge  that  the  accused  did,  on,  etc.,  un- 


JOHNSTON  r.  UXITIID  STATKS. 


u4'^ 


Inwfiilly  nnd  fplonloualy  obtain,  or  attempt  to  obtain  (as  the  onse  may 
111'),  Imm  A.  It.  (here  Insert  the  name  oS  the  person  defrauded  or  at- 
tempted to  bo  defrauded),  his  money  (or  property,  In  case  It  be  not 
money),  by  means  and  by  use  of  the  confidence  game."  In  Morten  v. 
Vcoplr,  Al  III.  4C8,  the  above  provls-lon  as  to  the  form  of  an  indictment 
was  hol'l  not  to  be  in  confilct  witli  the  constitution. 


JoiIXSTON'    V.    UxiTKI)    StATKS. 

30  C.  C.  A.  G12— 87  Fed.  Rep.  187. 

Circuit  Court  of  Appeals,  Fifth  Circuit. 

Decided  April  2C,  1898. 

CoNSTiTirioNAL  Law:  Inferential  pleadings — Variance — Terlflcation  of 

an  information. 

1.  To  comply  with  the  fundamental  law  of  the  United  States,  it  is 

necessary  that  the  verification  to  an  information  filed  l)y  a  dis- 
trict attorney  should  show  facts  within  the  knowledge  of  the 
affiant.  A  statement  that  "there  is  probable  cause  to  believe"  is 
not  sufficient.  Perjury  could  not  be  based  upon  such  verification, 
if  false. 

2.  An  information  should  state  facts  positively,  and  not  by  inference. 

3.  Variance  between  allegations  and  proof. 

V.YYnr  to  District  Court  of  the  United  States,  Middle  District 
(if  Alahitiiin. 

>'.  L.  Fuller,  for  the  plaintiff  in  error. 
II'.  S.  liccse,  for  the  United  States. 

Present:  Pardee  and  McCorinick,  Circuit  Judges,  and 
Swayne,  District  Judge. 

Pardke,  J.  Preston  T.  Johnston,  who  prosecutes  this  writ 
of  error,  Avas  tried,  convicted,  and  sentenced  for  the  violation  of 
sec.  531)9,  Kev.  St.  U.  S.,  on  an  information  as  follows: 

"The  United  States  versus  P.  T.  Johnston. 

"Xo.  2,0.53.     Information.     District  of  the  United  States  for 

the  ^liddle  District  of  Alabama.     For  the  Xo- 

vemher   Term,   A.   D.   1890. 
''Before  the  Hon.  John  Bruce,  District  Judge.' 
"Be  it  remembered  that  George  F.  ^foore,  as  district  attorney 
of  the  United  States  for  the  ^liddle  District  of  Alabama,  w'  o 


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351) 


AMEitlCAN  CRIMINAL  REPORTS. 


for  tlie  said  United  States,  in  this  behalf,  prosccntes  in  lii.s 
proper  person,  comes  here  unto  the  district  court  of  the  rnit(>(l 
States  for  the  said  Middle  District  of  Alabama,  on  the  tenth  day 
of  Decendter,  A.  D.  189G,  in  this  same  term,  and  gives  the  couit 
here  to  understand  and  be  informed  that  heretofore,  on  the 
fourth  day  of  December,  A.  D.  189G,  before  the  filing  of  this 
information,  in  the  county  of  Montgomery,  Avithin  said  MidiUo 
District  of  Alabama,  and  Avithin  the  jurisdiction  of  said  court, 
P.  T.  Johnston,  whose  name  to  the  district  attorney  is  otherwise 
Tuiknown,  did  unlawfully  and  corruptly  endeavor  to  obstruct  tlio 
due  administration  of  justice  in  the  district  court  of  the  United 
States  for  the  Middle  District  of  Alabama,  in  this:  That  during 
the  present  term  of  said  district  court  there  was  and  still  is 
pending  on  the  docket  of  said  court  an  indictment  charging  (nn\ 
J.  E.  Bailey,  alias  Ed.  Bailey,  with  a  violation  of  the  internal 
revenue  laws  of  the  United  States  for  unlawfully  knowingly  re- 
moving, to  wit,  five  lumdred  gallons  of  distilled  spirits,  on  which 
the  tax  due  the  United  States  had  not  been  paid,  from  a  ware- 
house for  distilled  spirits  authorized  by  law,  without  first  pay- 
ing the  tax  thereon,  and  with  removing  said  spirits  in  a  manner 
otherwise  than  provided  by  law,  to  wit,  by  stealth  and  without 
proper  notice  being  given  to  the  officers  of  the  United  States; 
and  the  said  Bailey  was  then  and  there  under  bond  to  appear  for 
trial  on  the  fourth  day  of  December,  189G,  imder  the  indictment 
charging  him  with  said  offense ;  and,  the  said  case  having  boon 
duly  called  for  trial  in  said  court,  the  said  Bailey,  through  his 
counsel,  sought  to  have  the  said  criminal  case  against  him  con- 
tinued until  the  next  term  of  the  ^aid  district  court,  anti,  in 
support  of  his  said  application,  filed  llie  following  certificato, 
to  wit : 

"  'State  of  Ai.aba:ma,  Franklin  County,  I  hereby  certify 
that  Mr.  J.  E.  Bailey,  who  is  now  sutTering  with  a  simple  frac- 
ture of  the  tibia,  will  be  for  some  time  unr  ble  to  travel,  or  to 
perform  any  kind  of  physical  labor  where  it  would  be  necessary 
to  be  upon  his  feet. 

"  'In  witness  whereof,  I  hereunto  set  my  hand  and  seal,  this 
K'ovomber  29th,  189G.  P.  T.  Johnston,  M.  D. 

"  'Personally  appearing,  Dr.  P.  T.  Johnston  made  oath  that 


JOHNSTON  V.  UNITED  STATES. 


351 


the  foregoing  statement  by  liim  subscribed  is  in  all  rospects  cor- 
rect and  true. 

"  *Jas.  S.  McCluskey,  [Seal.]  Ifotary  Public. 

"  Tiled  Dec.  4,  1S9G.  J.  W.  Dimmick,  Clekk.' 

"And,  the  said  district  attorney  gives  the  court  to  un<lerstand 
and  be  informed  that  the  said  Johnston  knew,  when  he  made  the 
said  certificate,  and  furnished  the  same  to  the  said  Bailey,  that 
the  said  certificate  was  false,  and  he,  the  said  Johnston,  fur- 
nished the  said  certificate  to  the  said  ]iailey  for  the  purpose  of 
obstructing  the  due  administration  of  justice  in  said  district 
court  of  the  United  States  for  the  Middle  District  of  Alabama, 
by  and  in  causing  the  said  case  against  the  said  Bailey  to  be 
continued  for  the  term  of  said  court  without  any  legal  or  just 
causae  therefor,  and  then  and  there  and  thereby  obstructing  the 
(Ino  administration  of  justice  in  the  said  court  of  the  United 
Slates.  Whereupon  the  said  district  attorney  of  the  United 
States  for  the  said  United  States  prays  the  consideration  of  the 
eourt  in  the  premises,  and  that  due  process  of  law  may  be  moved 
ajiiiinst  the  said  P.  T.  Johnston  in  this  behalf  to  make  him 
answer  the  United  States  concerning  the  premises  aforesaid. 
"Geo.  T.  Moore,  United  States  Attorney." 

Accompanying  this  information,  and  as  the  basis  thereof,  ap- 
pears the  following  affidavit: 

"United  States  of  America,  Middle  District  of  Alabama — ss. : 
liefore  me,  John  Bruce,  judge  of  the  district  court  of  the  United 
States  for  the  ^Middle  District  of  Alabama,  personally  appeared 
J.  A.  Dudley,  who,  being  by  me  first  duly  sworn,  deposes  and 
says  that  the  offense  of  obstructing  the  due  administration  of 
justice  in  the  district  court  of  the  United  States,  for  the  Middle 
District  of  Alabama,  has  been  committed,  and  that  there  is  prob- 
able cause  to  believe  that  the  said  offense  has  been  committed  l)y 
P.  T.  Johnston.  J.  A.  Dudley. 

"Sworn  to  and  subscribed  before  me  tliis,  the  tenth  day 


of 


A.  D.  189G. 


"John  Bruce,  Judge." 
The  record  shows  that  the  plaintiff  in  error  first  demurred  to 
the  indictment,  on  the  ground  that  the  information  was  not 
based  upon  an  affidavit  showing  facts  within  the  personal  knowl- 


^;  '*■ 


852 


AMERICAN  CRIMINAL  REPORTS. 


i  .■Hi   .m 


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ii 


edge  of  the  affiant.  This  dcmurror  being  ovemilod,  Jolinston 
filcMl  a  ploa  in  abatement,  tbe  gronnds  of  wbich  do.  not  appear 
in  the  record.  Following  the  plea  in  abatement,  Johnston  ap- 
pears to  have  demurred  generally  to  the  information.  The  bill 
of  exeejjtions  found  in  the  record  purports  to  give  all  the  testi- 
mony adduced  on  the  trial  of  the  case.  The  affidavit  on  Avhich 
the  information  was  based  was  Avholly  insufficient  to  warrant 
the  arrest  and  trial  of  the  plaintiff  in  erroi',  and  is  altogether 
too  general  in  terms  as  to  the  offense  against  the  United  Stat(>-! 
said  to  have  been  committed;  and  it  shows  no  knowledge,  infor- 
mation, nor  even  belief  on  the  part  of  the  affiant  as  to  the  guilt 
of  the  party  charged,  beyond  the  bare  statement  that  "there  is 
probable  cause  to  believe  that  the  said  offense  has  been  commit- 
ted by  P.  T.  Johnston."  However  false  the  affidavit  may  be, 
it  would  bo  next  to  impossible  to  assign  and  prove  perjury 
upon  it. 

In  United  States  v.  Txircaud,  20  Fed.  Rep.  621,  the  law  with 
regard  to  the  sufficiency  of  an  affidavit  upon  which  an  informa- 
tion can  be  lawfully  based  is  fully  considered  and  discussed 
on  principle  and  authority,  and  therein  it  is  held  that  "the  prnl)- 
able  cause  supported  by  oath  or  the  affirmation  prescribed  by  the 
fundamental  law  of  the  United  States,  sufficient  to  base  an  iii- 
fonnaticm  upon,  is  the  oath  or  the  affidavits  of  those  pej'sons  who 
of  their  own  knowledge  depose  to  the  facts  which  constitute  the 
offense."  In  United  States  v.  Polite,  35  Fed.  Rep.  59,  it  is 
held  that  "informations  must  be  based  on  affidavits  which  show 
probable  cause  arising  from  the  facts  within  the  knowledge  of 
the  i)arties  making  them,  and  that  mere  belief  is  not  sufficient." 
Tested  by  these  authorities,  the  affidavit  in  the  present  case  was 
fatallv  defective. 

The  demurrer  to  the  information  should  have  been  sustained. 
Tiie  information  first  charges  that  Johnston  "did  unlawfully 
and  corniptly  endeavor  to  obstruct  the  due  administration  of 
justice  in  the  district  court  of  the  United  States  for  the  Middle 
District  of  Alabama  in  this:  [Then  reciting  matters  and  things 
done, by  one  J.  E.  Bailey,  but  nothing  whatever  that  was  done  or 
charged  to  have  been  done  by  Johnston.]"  Following  this,  and 
apparently  as  a  second  count  in  the  information,  Johnston  is 
charged  with  furnishing  a  certain  certificate  to  the  said  Bailey 


JOHNSTON  V.  UNITED  STATES. 


858 


for  the  purpose  of  obstructing  the  due  administration  of  justice 
in  said  district  court  of  the  United  States  for  the  Middle  Dis- 
trict of  Alabama,  which  he  knew  when  he  made  and  furnished 
the  same  was  false.  Only  incidentally  or  inferentially  is  it 
cliarged  that  Johnston  made  the  said  certificate,  and  nowhere  is 
it  specifically  charged  that  he  made  it  and  furnished  it  with  any 
corrupt  intent.  There  was  no  evidence  in  the  case  to  show  that 
Johnston  made  or  furnished  the  specific  certificate  set  forth  in 
the  information.  It  is  true,  there  was  evidence  tending  to  show 
that  he  made  and  furnished  to  the  said  Bailey  a  certificate 
similar  to  a  part  of  the  certificate  set  forth  in  the  information ; 
but  there  is  a  fatal  variance  between  the  certificate  proved  to 
have  been  made  and  furnished  by  Johnston  and  the  one  charged 
in  the  information  to  have  been  furnished  by  him.  For  these 
reasons,  the  judgment  of  the  district  court  is  reversed,  and  the 
case  is  remanded,  with  instructions  to  set  aside  the  verdict  and 
sentence  and  quash  the  information. 


Notes  (by  J.  F.  G.). — Practically  the  same  subject  came  up  before 
the  Supreme  Court  of  Kansas  in  State  v.  Oleason,  32  Kan.  345,  5  Am. 
Crim.  Rep.  172,  where  the  subject  of  consideration  was  an  information 
filed  and  verified  by  the  county  attorney  upon  information  and  belief. 
The  Kansas  statutes  provided:  "When  the  information  in  any  case  is 
verified  by  the  county  attorney,  it  shall  be  sufficient  if  the  verification 
be  upon  information  and  belief,"  and  the  court  said:  "If  the  statutes 
were  controlling,  and  there  was  no  limitation  or  qualification  thereof, 
and  no  constitutional  inhibition,  it  is  manifest  that  a  verification  upon 
hearsay  or  belief  would  be  sufficient;"  but  the  court  cites  the  consti- 
tutional provision  that  "no  warrant  shall  issue  but  on  proper  cause 
supported  by  oath  or  affirmation;"  and  after  a  careful  review  of  the 
authorities  held  that  the  verification  was  insufficient  and  reversed  \.he 
Judgment  of  the  court  below. 

In  Myers  v.  People,  67  111.  503,  the  question  came  before  the  court 
as  to  whether  a  certain  complaint,  under  oath,  was  a  sufficient  basis 
for  the  filing  of  an  information  in  the  county  court  charging  the  de- 
fendant with  selling  liquor  without  license.  Judge  McAllister  in  a 
careful  review  of  the  matter  held  that  the  complaint  in  that  case  was 
sufficient,  in  that  it  stated  sufficient  facts,  on  which  perjury  could  be 
assigned  if  the  statements  were  false;  but  he  concludes  the  opinion  as 
foUowa; 

"We  are  of  opinion  that  the  fifth  section  of  the  county  court  act 
should  be  construed  with  reference  to  the  sixth  section  of  the  'Bill  of 
Rights,'  which  declares  that  'no  warrant  shall  issue  without  probable 
cause  supported  by  affidavit,"  etc. 

"If  informations  could  be  filed,  upon  which  a  warrant  for  arrest  may 

VouXI  — 23 


Soi 


AMERICAN  CRIMINAL  REPORTS. 


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a.  .i«.- 


Issue  without  affidavit,  the  door  would  be  opened  to  intolerable  abuses; 
every  man's  liberty  would  be  at  the  mercy  of  the  caprice  or  malice  ot 
the  State  or  county  attorney." 

Judge  McAllister  again  announced  this  doctrine  in  People  ex  rel. 
Smith  V.  Brown,  6  Chi.  Legal  News,  392,  heard  in  August,  1874,  by 
him  in  chambers,  as  Judge  of  the  Supreme  Court,  upon  a  writ  of 
habeas  corpus.  The  prisoner  was  arrested  upon  a  warrant  issued  from 
the  county  court  of  Lake  county,  based  upon  an  Information  made  by 
the  State's  Attorney,  but  not  supported  by  affidavit.  It  was  contended 
by  the  State's  Attorney  that  the  warrant  was  Issued  in  accordance  witli 
sections  117  and  118  of  the  act  of  March  25,  1874,  in  relation  to  tlie 
jurisdiction  and  procedure  of  the  county  court;  while  the  prisoner's 
counsel  cited  as  authority,  Myers  v.  People,  supra.  The  judge  incor- 
porated in  his  opinion  the  above  paragraphs  from  Myers  v.  People,  and 
then  said:  "This  expression  was  not  necessary  to  the  decision  of  any 
point  in  the  case  further  than  this:  There  were  affidavits,  but  it  was 
claimed  they  did  not  show  probable  cause.  If  none  at  all  were  neces- 
sary, that  would  be  an  answer  to  that  objection.  However,  if  the  re- 
marks could  be  regarded  as  obiter  dicta,  they  were  not  the  dicta 
merely  of  the  judge  who  delivered  the  opinion.  He  was  directed  to 
make  them  by  a  majority  of  the  court.  That  section  of  the  county 
court  act  did  not  expressly  or  impliedly  authorize  the  State's  Attorney 
to  file  information  ex  officio  without  proof.  But  by  the  117th  section 
of  the  present  act  he  is  so  authorized.  The  question  is  one  of  so  much, 
of  so  vital,  importance  to  the  civil  liberties  of  the  citizen,  that  I  have 
felt  it  my  duty  to  look  further  into  the  question  and  see  if  the  court 
took  an  erroneous  view  of  it  in  what  was  said  in  Myers  v.  The  People." 

After  reviewing  the  act  then  in  question,  the  court  remarked  that 
the  practice  was  not  novel,  and  said:  "It  is  borrowed  and  substantially 
copied  from  an  odious  feature  of  the  English  'aw  engrafted  upon  those 
laws  and  tolerated  through  favor  to  the  pi  gatlves  of  the  Crown, 
and  against  the  better  feelings  of  England's  old-time  lawyers  and 
judges  of  broad  and  humane  views.  Sir  Matthew  Hale  was  no  friend 
of  this  mode  of  prosecution." 

Then,  after  reciting  authorities,  the  judge  continues:  "It  will  be  seen 
by  consulting  that  and  other  authors,  the  English  law,  unaffected  by 
the  vicious  principles  introduced  by  the  Tudors,  sanctioned  a  prosecu- 
tion by  information,  filed  ex  officio  by  the  Attorney-General,  only  in 
great  t.nergency,  and  then  always  in  that  high  and  respectable  juris- 
diction, the  King's  Bench.  The  reason  by  which  this  procedure  was 
supported  does  not,  and  cannot,  apply  in  this  country." 

The  judge  then  again  reviews  English  authorities  and  English  his- 
tory and  concludes  that  that  portion  of  the  act  in  question  which  at- 
tempts to  authorize  arrests  to  be  made  upon  informations  not  supported 
by  affidavit  is  unconstitutional  and  void.    The  prisoner  was  discharged. 

As  this  case  was  heard  in  chambers,  the  opinion  has  not  found  its 
way  to  the  official  reports,  but  is  none  the  less  an  authority,  coming  as 
it  does  from  one  of  the  ablest  judges  of  his  time. 


VANDEVER  v.  STA^'K 


Vandever  v.  State. 


355 


1  Marvel  (Del.),  209—40  Atl.  Rep.  1105. 

Superior  Court  of  Delaware,  Newcastle  County,  February  Term,  1894. 

Constitutional  Law:  Insufflciency  of  a  criminal  complaint. 

As  the  constitution  requires  that  the  defendant  shall  be  fully  in- 
formed of  the  offense,  a  criminal  complaint  based  upon  a  statute 
which  declares  it  a  nuisance  to  "wilfully  enter  into,  upon,  or 
trespass  on  the  ways,  lands  or  premises  of  another,"  which  omita 
the  word  "wilful,"  is  insufficient  in  a  matter  of  substance. 

Ilarrj  Vandever,  being  convicted  of  committing  a  nuisance, 
l»riiigs  error.    Reversed. 

The  complaint  upon  which  the  warrant  was  issued  was  as 
follows : 

"On  this  12lh  day  of  June,  A.  D.  1893,  personally  appeared 
Cliarlcs  E.  Barrett,  of  Newcastle  hundred,  in  the  county  of 
Xowcastle  and  State  of  Delaware,  who,  being  by  me  duly  sworn 
according  to  law,  deposes  and  says  that  a  certain  Harry  W. 
Vandever,  of  Wilmington  hundred,  in  said  county,  did  at  J^ew- 
castle  hundred,  aforesaid,  on  the  9th  day  of  June,  A.  D.  1893, 
commit  a  trespass  upon  the  ways,  lands,  and  premises  of  the 
said  Charles  E.  Barrett,  after  being  forewarned,  by  entering 
thereon  and  assuming  forcible  possession  thereof,  and  against 
the  law,  peace,  and  dignity  of  the  said  State." 

The  defendant  below  was  convicted  of  committing  a  nui- 
sance, in  violation  of  ch.  190,  vol.  19  of  Delaware  laws.  The 
exception  on  which  the  case  tunied  was  that  the  record  did  not 
show  that  he  was  charged  with  having  "wilfully"  committed 
the  trespass. 

Ward,  for  defendant  below. 
Bodney,  for  plaintiff  below. 

Lore,  C.  J.  The  constitution  requires  that  the  defendant 
shall  be  fully  informed  of  the  offense  against  him;  and  this  stat- 
ute under  whjjh  he  is  convicted  says: 

"That  if  any  person  shall  wilfully  enter  into,  upon,  or  tres- 
pass upon  the  ways,  lands,  or  premises  of  another  in  this  State, 
lie  shall  be  guilty  of  a  nuisance." 


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350 


AMERICAN  CRIMINAL  REPORTS. 


It  scorns  to  us  that  the  word  "wilful"  is  a  substantial  element 
of  the  crime,  and  necessary  to  be  set  forth  in  terms. 

The  only  doubt  which  was  suggested  during  the  argument 
was  occasioned  by  the  terms  of  section  2,  of  chapter  97,  Revised 
Code,  which  provides  that : 

''Justices  of  the  peace  may  issue  all  writs,  warrants  and  pro- 
crsses  proper  to  carry  into  effect  the  powers  granted  to  them ; 
and  when  no  form  is  prescribed  by  statute,  they  shall  frame  one 
in  conformity  with  the  law,  in  substance;  and.  when  substan- 
tially right,  such  process  shall  not  be  invalid  for  any  defects  in 
form." 

We  think  that  the  word  "wilful"  is  not  a  matter  of  fonn.  It 
is  a  matter  of  substnnf*e,  of  the  essence  of  the  crime  charged,  and 
ought  to  be  set  forth  in  the  complaint  and  shown  in  the  tran- 
script and  in  the  proceedings.  While  this  is  not  an  indictment, 
and  the  statute  would  cure  all  mere  matters  of  form,  yet  there 
nuist  be  alleged,  in  substance,  sufficient  to  meet  the  statutory 
provision,  and  it  is  necessary  to  set  forth  in  these  proceedings 
every  substantial  matter  with  the  same  certainty  which  would 
be  required  in  an  indictment.  There  would  be  no  other  safe 
rule. 

We  think,  therefore,  that  this  judgment  ought  to  be  reversed. 

Note  (by  J.  F.  G.). — Although  decided  In  1894,  the  case  was  not  re- 
ported until  1898.  The  superior  court  seems  to  be  a  court  of  last  re- 
sort In  Delaware,  and  accordingly  the  opinion  regarded  as  an  author- 
ity. Two  points  in  the  opinion  are  worthy  of  especial  notice:  First.  It 
is  the  defendant's  right  under  the  constitution  to  be  fully  informed 
as  to  the  accusation;  second,  a  complaint  should  be  as  specific  as  an 
indictment. 


VWM 


LippMAN  V.  People. 

•      175  111.  101—51  N.  E.  Rep.  872. 

Opinion  filed  October  24.  1898. 

Constitutional  Law:   Special  legislation — Criminal  complaints — 

Search-warrants. 

1.  A  law  may  be  general  though  it  applies  only  to  a  particular  class 
of  persons,  but  it  is  essential  that  the  classification  be  made  so 
general  as  to  bring  within  its  limits  all  persons  who  are  sub- 
stantially in  the  same  situation. 


LIPPMAN  V.  PEOPLE 


357 


2.  The  words  "other  beverages,"  used  In  the  Trade-mark  Act  of  1873 

(Rev.  Stats.  1874,  p.  1084),  following  the  words  "ale,  porter,  lager 
beer,  soda,"  and  "mineral  water,"  include  only  beverages  of  the 
same  kind  or  class  described  by  those  particular  antecedent  terms. 

3.  The  Trade-mark  Act  of  1873,  for  the  protection  of  "manufacturers, 

bottlers  and  dealers  in  ale,  porter,  lager  beer,  soda,  mineral  water 
and  other  beverages,  from  the  loss  of  their  casks,  barrels,  kegs, 
bottles  and  boxes,"  is  a  special  law,  granting  exclusive  privileges 
in  violation  of  the  last  two  clauses  of  section  22  of  article  4  of 
the  constitution. 

4.  Section  6  of  article  4  of  the  constitution,  providing  that  no  search- 

warrant  shall  issue  without  probable  cause,  supported  by  affi- 
davit, requires  the  afflant  to  state  facts  sufficient  to  satisfy  the 
magistrate  that  probable  cause  exists  for  issuing  the  warrant. 

5.  An  act  which  attempts  to  substitute  the  mere  belief  of  the  owner 

of  property  or  of  his  agent  that  probable  cause  exists  for  issuing 
a  search-warrant,  for  the  judicial  discretion  of  the  magistrate, 
and  which  authorizes  a  warrant  to  issue  without  a  showing  of 
facts,  but  upon  mere  belief  or  suspicion  of  the  afflaat,  is  unconsti- 
tutional. 

6.  A  search  is  unreasonable,  within  the  meaning  of  the  constitution, 

the  object  of  which  is  to  enable  an  individual,  who  has  scattered 
his  property  abroad,  to  search  the  premises  of  parties  suspected 
of  using  such  property  without  written  consent.  In  order  to  re- 
gain the  same,  and  thus  collect  evidence  leading  to  prosecutions. 

7.  The  Trade-mark  Act  of  1873  (Rev.  Stats.  1874,  p.  1084)  is  violative 

of  section  22  of  article  4  of  the  constitution,  concerning  special 
legislation,  and  of  section  6  of  article  2  of  the  constitution',  con- 
cerning unreasonable  searches  and  seizures. 


Writ  of  error  to  the  Criminal  Court  of  Cook  County;  the 
Hon.  Theodore  Brentano,  Judge,  presiding. 

Zoloikoff  &  Zoline  {John  F.  Gceting,  of  counsel),  for  plaint- 
iif  in  error : 

If  two  statutes  are  clearly  repugnant  to  one  another,  the  one 
last  enacted  operates  as  a  repeal  of  the  former.  Trustees  v. 
Chicago,  14  111.  334;  Andrews  v.  People,  75  id.  605. 

Section  22  of  article  4  of  the  constitution  prohibits  the  pass- 
age by  the  General  Assembly  of  local  special  laws  by  which  any 
corporation,  association  or  individual  might  be  granted  any 
special  or  exclusive  privilege,  immunity  or  franchise  whatever. 
Special  legislation  is  prohibited  in  all  cases  where  the  general 
law  can  be  made  applicable.  The  act  of  1873,  to  protect  manu- 
facturers of  ale,  etc.,  upon  which  this  prosecution  is  based,  was 
passed  in  violation  of  the  said  constitutional  provision.     A 


1 


358 


AMERICAN   CRIMINAL  REPORT& 


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eenrch-warrant  is  not  allowed  to  issue  for  the  purpose  of  collect- 
ing evidence  of  an  intended  crime,  but  only  after  evidence  of  an 
offense  committed.    Cooler's  Const.  Lim.  299. 

Unreasonable  searches  and  seizures,  and  laws  and  ordinances 
to  that  effect,  are  condemned  in  Sullivan  v.  Oneida,  61  111.  242. 

An  arbitrary  act  of  the  legislature  taking  the  property  of  one 
and  giving  it  to  another  is  not  "due  process  of  law."  "Due 
process  of  law"  means  the  due  course  of  legal  proceedings  ac- 
cording to  those  niles  and  forms  which  have  been  established 
for  the  protection  of  private  rights.  Board  of  Education  v. 
Bal-ewell,  122  111.  399. 

Class  legislation  cannot  be  successfully  defended  on  the 
theory  of  police  power  of  the  State,  because  the  legislature,  in 
the  exercise  of  the  police  power,  cannot  prescribe  that  which  is 
not  necessary  to  the  health,  safety  or  wel::are  of  the  public  and 
is  oppressive  to  the  private  citizen.  Railway  Co.  v.  Jaclson- 
ville,  07  111.  37. 

An  affidavit  is  a  statement  of  facts  reduced  to  writing  with 
that  degree  of  clearness  and  positiveness  that  if  falsely  made 
the  affiant  may  be  held  guilty  of  perjury.  Myers  v.  People,  07 
111.  503;  Ex  parte  Dimmig,  74  Cal.  104;  People  v.  Ileffron, 
53  Mich.  527 ;  Ex  parte  Lane,  6  Fed.  Rep.  34 ;  Miller  v.  Muti- 
son,  34  Wis.  579;  Peers  v.  Carter,  4  Litt.  209;  People  v. 
Becher,  20  X.  Y.  354;  Neal  v.  Gordon,  GO  Ga.  112. 

The  statute  now  under  consideration  simply  requires  tho 
complainant  to  make  the  general  statement  "that  he  has  reason 
to  believe,  and  does  believe,  that  any  manufacturer  .  .  . 
is  using,  in  any  manner,"  etc.  (sec.  4  of  act),  and  in  that  regard 
not  only  falls  short  of,  but  is  in  violation  of,  the  constitutional 
requirement.  The  statute  attempts  to  transfer  the  judicial  dis- 
(y.'etion  from  the  judicial  officer  to  the  complainant,  and  permits 
the  complainant  to  pass  upon  the  question  of  probable  cause. 
This  class  of  supposed  affidavits  is  universally  condemned,  both 
in  civil  and  criminal  practice,  when  used  to  disturb  a  citizen  in 
his  constitutional  security.  People  v.  Ileffron,  53  Mich.  527 ; 
Ex  parte  Dimmig,  74  Cal.  104 ;  Hart  v.  Grant,  66  N.  W.  Eep. 
322;  Ex  parte  Lane,  6  Fed.  Rep.  34;  United  States  v.  Collins^ 
79  id.  65 ;  Shaw  v.  Ashford,  68  N.  W.  Rep.  281 ;  Thomson  v. 
Higginhotham,  18  Kan.  42;  Atchison  v.  Bartholow,  id.  104; 


LIPPMAN  V.  PEOPLE. 


359 


Chi/lln  V.  Bears,  57  How.  Pr.  78 ;  Bauh  v.  Loacliemis,  8  N.  Y. 
Siipp.  520 ;  Thompson  v.  Best,  -1  id.  229. 

E.  C.  Akin,  Attorney-General  (D.  C.  Ilagle,  G.  A.  Hill,  and 
E.  S.  Cummings,  of  counsel),  for  the  Peoiile: 

The  repeal  of  an  act  by  implication  is  never  permitted  if  it 
can  be  avoided  upon  any  reasonable  hypothesis.  Butz  v.  Kerr, 
123  111.  C59 ;  County  of  Cook  v.  Gilbert,  140  id.  2G8 ;  Trausch 
V,  County  of  Cook,  147  id.  534. 

A  subsequent  general  law  will  not,  by  implication,  operate 
as  a  repeal  of  a  special  law  on  the  same  subject,  though  in- 
consistent with  it.  County  of  Cook  v.  Gilbert,  140  111.  208 ; 
Butz  V.  Keir,  123  id.  059;  Trausch  v.  County  of  Cook,  147- 
id.  534. 

A  law  is  general  if  it  applies  to  all  persons  in  the  State  simi- 
larly engaged.  Ilawfhoiii  v.  PeojyJe,  109  111.  302;  People  v. 
Ilazelwood,  110  id.  319 ;  Vogel  v.  Pekoe,  157  id.  .»39 ;  People 
V.  Cohn,  149  id.  480 ;  Peojile  v.  Cannon,  139  N.  Y.  32. 

Section  0  of  article  2  of  the  constit\ition  does  not  prohibit  all 
searches  and  seizures,  but  only  such  as  are  unreasonable;  and 
the  plain  application  therefrom  is,  that  a  search-warrant  may 
issue  if  it  is  for  a  reasonable  search  and  seizure,  and  is  based 
upon  probable  cause,  supported  by  an  affidavit  particularly  de- 
spribiug  the  place  to  be  searched  and  the  person  or  things  to  be 
seized.  Gindrat  v.  People,  138  111.  103;  Glennon  v.  Britton, 
155  id.  232 ;  Langdon  v.  People,  133  id.  382. 

Laws  with  reference  to  search-warrants,  which  provide  for 
search  for  stolen  property  or  other  ai-ticles  illegally  kept,  re- 
quiring that  such  property  and  the  pcro  in  whose  possession  it 
is  found  shall  be  brought  before  the  jusi  ce,  are  not  unco"n3titu- 
tional,  as  working  deprivation  of  pi'operty  without  due  process 
of  law.    Glennon  v.  Britton,  155  111.  232. 


]\[r.  Justice  Cartwrigiit  delivered  the  opinion  of  the  court. 

On  the  affidavit  of  John  A.  Carey,  agent  of  the  Gottfried 
Brewing  Company,  a  warrant  was  issued  by  a  justice  of  the 
peace  of  Cook  county,  directed  to  all  sheriffs,  coroners  and  con- 
stables of  this  State,  commanding  them  to  search  the  premises 
of  the  plaintiff  in  error  for  four  hundred  beer  bottles,  and  forty 
casks,  barrels,  kegs  and  boxes,  having  the  marks  of  said  com- 


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AMERICAN  CRIMINAL  REPORTS. 


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pany  on  them,  and  if  tlie  same  or  any  part  thereof  should  ho 
found  upon  such  search,  to  bring  the  same  before  the  justice, 
and  arrest  the  plaintiff  in  error  and  bring  him  also  before  ilit; 
said  justice,  to  bo  disposed  of  according  to  law.  Keturn  wjis 
made  on  the  warrant  bv  tho  constable  who  exffcutcd'it,  that  lie 
found  twenty-seven  bottles  marked  "Gottfried  lirewing  Co.," 
and  he  brought  the  same  before  the  court,  and  arrested  phiintity 
in  error  and  brought  him  also.  The  prosecution  was  institute  I 
under  an  act  entitled  '*An  act  to  protect  mnn\ifacturers,  bni- 
tlers  and  dealers  in  ale,  porter,  lager  beer,  soda,  mineral  wtiti  r 
and  other  beverages,  from  the  loss  of  their  casks,  barrels,  k<'gs, 
bottles  and  boxes."  (Kev.  St.,  ch.  140,  entitled  "Trade-marks.") 
Plaintiff  in  error  was  found  guilty  and  fined.  lie  appealed  to 
the  criminal  court  of  Cook  county,  and  at  the  trial  there,  tlio 
following  facts  were  agreed  upon :  The  Gottfried  ]5rewing  Com- 
pany is  a  corporation,  organized  for  the  purpose  of  brewiiiji; 
beer.  It  complied  with  the  provisions  of  said  act  by  filing  in 
the  office  of  tho  Secretary  of  State  an<l  in  tho  office  of  tin; 
county  clerk  of  Cook  county  a  description  of  tho  names  ami 
marks  on  its  bottles  and  boxes,  and  by  publishing  tho  same.  On 
the  bottles  are  the  words  "Gottfried  Brewing  Co.,  Chicago,  111.,"' 
and  "This  bottle  is  never  sold,"  or  "Golden  Drop"  and  "Gott- 
fried Brewing  Co.,  Chicago,"  cast  or  blown  in  the  glass.  The 
words  "Gottfried  Brewing  Co.'s  Golden  Drop  Boer,  Chicago, 
Tel.  South  429,"  are  stamped  or  marked  on  the  boxes.  The  de- 
fendant is  a  bottler  of  lager  beer  in  Chicago,  and  on  July  2, 
1894,  filled  with  lager  beer  twenty-seven  bottles  so  marked. 
It  was  proved  that  he  did  not  have  the  written  consent  of  tho 
brewing  company  to  make  such  use  of  the  bottles.  lie  was 
again  convicted  and  fined  $1.3.50  and  costs,  and  sued  out  the 
writ  of  error  in  this  case  to  review  the  proceedings. 

It  is  conceded  that  defendant  violated  the  provisions  of  tho 
act  under  which  he  was  prosecuted,  but  it  is  claimed  that  tho 
act  is  unconstitutional,  and  the  case  is  brought  here  direct  from 
the  trial  court  on  that  ground.  The  provisions  of  the  constitu- 
tion which  it  is  claimed  are  violated  bj'  the  enactment  are  sec- 
tion 22  of  article  4,  which  prohibits  the  general  assembly  from 
passing  a  special  law  granting  to  any  corporation,  association  or 
individual  any  special  or  exclusive  privilege,  immunity  or  fi'an- 


LIPPMAN  I'.  PEOPLE. 


301 


cliiso  whatever,  or  in  any  other  case  where  a  general  law  can  bo 
niacle  applicable,  and  section  G  of  article  2,  which  protects  the 
right  of  the  people  to  be  secure  in  their  persons,  houses,  papers 
and  effects  against  unreasonable  searches  and  seizures. 

The  act  in  question  applies  only  to  manufacturers,  bottlers 
and  dealers  in  ale,  porter,  lager  beer,  soda,  mineral  water  and 
other  beverages.  The  term  "other  beverages,"  under  the  settled 
rule  of  construction,  includes  only  beverage^^  of  the  same  kind 
or  class  as  the  particular  antecedent  terms  of  doscriiitioii  em- 
plo_)cd  in  the  act.  The  object  of  the  act,  as  gatli*  ed  from  its 
provisions,  is  to  protect  and  benefit  that  clasd  of  persons.  It 
gives  to  them  the  exclusive  right  to  register  the  names  and 
marks  of  ownership,  stamped  or  marked  on  their  casks,  barrels, 
kcg-s,  bottles  or  boxes,  and  gives  to  them  the  exclusive  privileges 
and  protection  arising  therefrom.  It  confers  upon  them  the 
power  to  call  upon  the  State  and  its  officeir  and  judiciary  to  act 
as  collectors  of  their  bottles,  kegs  and  boxes  which  they  have 
voluntarily  scattered  over  the  State  among  their  customers.  It 
attempts  to  place  at  their  disposal  the  extraordinary  right  of 
the  search-warrant,  by  which  they  may  arm  a  constable  or  other 
officer  with  process  to  intrude  upon  the  premises  or  the  home  of 
any  citizen  to  recover  their  bottles,  kegs  and  the  like.  The  ob- 
ject of  the  act  is  not  only  evident  from  its  provisions,  but  also 
from  its  title,  wli«re  the  legislature  is  required  to  express  its 
general  purpose,  and  which  they  have  expressed  as  follows :  "An 
act  to  protect  manufacturers,  bottlers  and  dealers  in  ale,  porter, 
lager  beer,  soda,  mineral  water  and  other  beverages,  from  the 
loss  of  their  casks,  barrels,  kegs,  bottles  and  boxes." 

While,  perhaps,  no  precise  and  comprehensive  definition  of 
the  word  "privilege,"  as  used  in  constitutions,  has  been  at- 
tempted, the  right  to  employ  remedies  for  the  collection  of 
debts,  the  recovery  of  property  and  the  enforcement  of  rights 
has  always  been  included  in  the  term  as  iised  in  the  Federal 
constitution.  It  seems  that  the  peculiar  benefits,  advantag'es 
and  rights  conferred  by  this  act  upon  the  persons  named  in  it, 
and  the  right  to  employ  an  unusual  remedy  for  the  recovery 
of  their  property,  must  be  classed  as  privileges, — and  this  does 
not  seem  to  be  denied  in  the  argument.  It  is  argued,  however, 
that  the  law  conferring  these  privileges  is  not  a  special  but  a 


iii. 


li 


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i-i' 


h 


id 


.!«;.*:  I 


AMERICAN  CRIMINAL  REPORTS. 


t»ij 


m 


ill 


B 


M 
I 


m 


general  one,  because  it  applies  to  all  persons  similarly  situated. 
General  laws  have  been  defined  to  be  those  which  relate  to  ur 
bind  all  within  the  jurisdiction  of  the  law-making  power, 
while  a  special  law  is  limited  in  the  object  to  which  it  applies. 
It  is  often  the  case,  however,  that  the  rights  and  protection  given 
by  a  law  cannot  be  enjoyed  by  every  citizen  by  reason  of  the 
subject  to  which  the  law  relates.  If  the  law  is  general,  and  uni- 
form in  its  operation  iipon  all  persons  in  like  circumstances,  it 
is  general  in  a  constitutional  sense,  but  it  must  operate  equally 
and  uniformly  upon  all  brought  within  the  relation  and  circum- 
stances for  which  it  provides.  On  the  other  hand,  if  it  is  lim- 
ited to  a  particular  branch  or  designated  portion  of  such  per- 
sons, it  is  special.  People  v.  Wright,  70  111.  388;  People  v. 
Cooper,  83  id.  585 ;  Hawthorn  v.  People,  id.  302.  Although 
general  in  its  character,  a  law  may,  from  the  nature  of  the  case, 
extend  only  to  particular  classes,  such  as  minors,  married 
women,  laborers,  bankers  or  common  carriers.  Such  a  law  is 
not  obnoxious  to  the  provisions  of  the  constitution  if  all  per- 
sons of  the  class  are  treated  alike  imder  similar  circumstances 
and  conditions,  but  it  is  not  a  proper  application  of  the  defini- 
tion to  say  that  a  law  is  general  because  it  applies  uniformly 
to  all  persons  in  the  conditions  and  circiimstances  for  which  it 
provides,  although  only  a  particular  branch  of  a  class  or  some 
particular  description  of  persons.  If  an  act  should  attempt  to 
confer  privileges  only  on  persons  of  a  certain  stature  it  could 
be  said  to  apply  uniformly  to  all  people  answering  such  descrip- 
tion, and  yet  it  would  be  absurd  to  say  that  such  a  law  would  be 
a  general  one.  The  classification  must  be  so  general  as  to  bring 
within  its  limits  all  those  who  are  in  substantially  the  same  sit- 
uation or  circumstances. 

This  act  singles  out  one  branch  of  a  class  of  manufacturers 
and  dealers  who  may  have  occasion  to  use,  or  who  do  use  in 
their  business,  bottle*,  barrels,  kegs  or  other  packages  for  their 
goods.  It  selects  those  whose  particular  manufacture  or  stock 
consists  of  certain  varieties  of  drink.  Xo  other  person  who 
manufactures  any  product  or  sells  it  in  casks,  barrels,  kegs,  bot- 
tles or  boxes  can  avail  himself  of  the  privilege  of  registering 
his  trade-marks  or  of  the  consequent  protection,  but  the  act  de- 
nies to  him  the  privileges  afforded  to  those  named  in  the  act.  The 


LIPPMAN  V.  PEOPLE. 


363 


grocer,  farmer,  fruit  dealor,  merchant,  druggist  or  other  dealer 
or  manufacturer  cannot  av'ail  himself  of  the  pivileges  or  remedy 
afforded  by  this  act  to  protect  himself  against  the  loss  of  his 
property  imder  the  same  circumstances.  The  purpose  of  this 
act,  passed  in  behalf  of  the  persons  named  in  it,  is  not  to  re- 
cover bottles  stolen,  embezzled  or  fraudulently  obtained  by  false 
tokens  or  pretenses,  but  to  make  the  proceedings  under  it,  as 
to  such  persons,  a  substitute  for  the  action  of  replevin.  The 
general  search-warrant  law  of  the  State  covers  all  the  cases 
just  mentioned,  and  was  on  our  statute  book  when  this  act  was 
passed.  There  are,  and  were,  general  laws  in  force,  applicable 
uniformly  to  all  persons  in  the  State,  for  the  recovery  of  per- 
sonal property  wrongfully  obtained  by  another.  This  law  was 
needless  for  that  purpose,  and  it  could  only  have  been  passed  to 
give  to  the  particular  persons  named  in  it  additional  privileges 
bv  making  the  criminal  law  supersede  the  writ  of  replevin. 
The  plain  purpose  of  the  act  is  to  make  the  officers  of  the  State 
detectives,  searchers  for  and  collectors  of  beer  bottles,  beer  kegs 
and  ihe  like.  It  is  for  a  mere  private  benefit,  having  no  rela- 
tion to  the  police  power  or  the  protection  of  the  piiblic  against 
frauds  or  injurious  preparations,  since,  if  the  brewer  or  dealer 
consents,  the  bottles  or  kegs  may  be  refilled  with  any  sort  of 
drink  different  from  the  marks  and  it  will  be  no  offense  under 
the  act,  however  injurious  to  the  public.  The  citizen  or  the 
health  officer  can  neither  institute  a  prosecution  nor  caaso 
search  to  be  made,  but  in  either  instance  it  must  be  by  the 
owner  or  agent.  The  public  has  no  rights  \inder  it,  and  neither 
the  title  nor  any  provision  indicates  any  public  piirpose. 

In  the  case  of  Eden  v.  People,  ICl  111.  29G,  the  decision 
turned  upon  the  provision  of  the  Eill  of  Rights  that  no  person 
shall  be  deprived  of  property  without  due  process  of  law,  but 
the  question  whether  the  act  which  was  being  considered  vio- 
lated that  provision  involved  the  question  whether  the  act  was 
a  general,  public  law.  It  was  conceded  that  the  act  prohibiting 
keeping  open  a  barber  shop  on  Sunday  would  be  valid  if  of  gen- 
eral and  uniform  application  to  all  laborers,  and  the  constitu- 
tionality of  such  a  law  is  thoroughly  established.  The  distinc- 
tion was  there  pointed  out  that  where  legislation  concerns  kd)or- 
ers  and  there  is  no  reasonable  ground  of  distinction  or  division 


;':i 


364 


AMERICAN  CRIMINAL  REPORm 


in'! 


into  classes,  the  general  class  includes  all  laborers,  and  barbers 
being  only  a  branch  of  that  class,  the  law  is  not  general.  Tlitro 
is  no  difference  in  the  application  of  the  principle  in  the  differ- 
ent cases,  and  the  decisions  cited  in  support  of  the  claim  that  a 
law  is  general  although  applying  only  to  a  subdivision  of  a  clas«!, 
do  not  support  the  claim.  In  Hawthorn  v.  People,  siipm,  the 
act  embraced  all  persons  in  the  State  brought  within  the  rela- 
tion defined  by  it,  and  it  did  not  appear  that  there  were  any 
with  similar  rights  or  relatious  excluded  from  it.  In  Cohn  v. 
People,  149  111.  486,  the  trade-mark  law  of  1891  was  held  to 
be  general,  on  the  ground  that  it  extended  to  every  association, 
jwrson  and  corporation  within  the  State  desiring  to  avail  its(  If 
of  its  privileges.  In  Vogel  v.  Pekoe,  157  111.  339,  the  statute, 
which  was  held  to  be  a  general  law,  applied  to  all  wage  earners 
in  the  State,  and  did  not  attempt  to  select  from  that  class  any 
particular  branch  of  such  laborers.  The  law  exempting  the 
wages  of  a  defendant  who  i?  the  head  of  a  family,  to  a  certain 
amount,  from  garnishment,  embraces  all  heads  of  families  in 
the  State.  There  is  an  exception  to  the  exemption  law  where 
the  claim  is  for  the  wages  of  a  laborer  or  servant,  but  it  includes 
every  laborer  and  servant.  There  are  laws  giving  to  certain 
classes  a  special  lien,  but  they  are  based  on  what  has  boon 
deemed  a  reasonable  ground  of  distinction, — that  the  material, 
services  or  keeping  enhance  the  value  of  the  property  or  aie 
necessarv  to  existence.  A  mechanic's  lien  law  has  never  dis- 
tinguished  between  those  who  erect  buildings  of  different  kinds 
or  different  material,  and,  although  uniform  in  application, 
such  laws  have  always  been  regarded  so  far  obnoxious,  as  con- 
ferring special  privileges,  that  they  are  subject  to  strict  con- 
struction. If  this  act  is  valid  it  would  be  equally  so  if  its  bene- 
fits were  confined  to  brewers  alone,  or  to  the  manufacturers  of 
soda  or  the  dealers  in  mineral  waters.  It  would  then,  as  it 
does  now,  embrace  only  a  part  of  the  manufacturers  of  or 
dealers  in  products  which  require  the  use  of  barrels,  boxes  or 
bottles.  In  conferring  upon  the  persons  named  in  the  act  the 
exclusive  privileges  given  thereby,  of  which  other  citizens  are 
deprived,  the  constitutional  provision  is  violated. 

Section  6  of  article  2  of  the  constitution  is  as  follows :  "The 
right  of  the  people  to  be  secure  in  their  persons,  houses,  papers 


LIPPMAN  V.  PEOPLE 


365 


and  effects,  against  unreasonable  soarelies  and  seizures,  shall 
not  be  violated;  and  no  warrant  shall  issue  without  probable 
cause,  sujiported  by  affidavit,  particularly  describing  the  place 
to  l)e  searched  and  the  persons  or  things  to  be  seized  '*  Sec- 
tion 4  of  the  act  in  question  provides  as  follows:  "In  case  the 
owner  or  owners  of  any  cask,  barrel,  keg,  bottle  or  box  so 
marked,  stamped  and  registered  as  aforesaid,  shall,  in  person 
or  by  agent,  make  oath  in  writing,  before  any  justice  of  the 
jx'uce  or  police  magistrate,  that  he  has  reason  to  believe,  and 
does  kdieve,  that  any  manufacturer  or  bottler  of  ale,  porter, 
liiiier  beer,  soda,  mineral  water  or  other  beverage,  or  any  other 
person,  is  using,  in  any  manner  by  this  act  declared  to  be  iin- 
lawful,  any  of  the  casks,  barrels,  kegs,  bottles  or  boxes  of  such 
person  or  his  principal,  or  that  any  junk  dealer  or  dealer  in 
cnsks,  barrels,  kegs,  bottles  or  boxes,  or  any  other  dealer,  man- 
ufacturer or  bottler  has  any  such  cask,  barrel,  keg,  bottle  or 
box  secreted  in,  about  or  upon  his,  her  or  their  premises,  the 
said  justice  of  the  peace  or  police  magistrate  shall  issue  his 
search-warrant  and  cause  the  premises  designated  to  be  searched 
as  ill  other  cases  where  search-warrants  are  issued,  as  is  now 
pnnided  by  law;  and  in  case  any  such  cask,  barrel,  keg,  bottle 
or  box  duly  marked  or  stamped  and  registered  as  aforesaid, 
FJiali  be  found  in,  upon  or  about  the  premises  so  designated,  the 
otKeer  executing  such  search-warrant  shall  thereupon  arrest  the 
])erson  or  persons  named  in  such  search-warrant,  and  bring  him, 
her  or  them  before  the  justice  of  the  peace  or  police  magistrate 
who  issued  such  warrant,"  etc. 

Tlie  search-warrant  provided  for  can  be  issued  only  at  the  in- 
f'tigation  of  the  owner  of  the  prope.-ty  to  be  searched  for,  or  his 
ajuciit,  and,  as  already  shown,  is  to  be  employed  merely  for  the 
maintenance  of  his  rights  by  making  the  officers  of  the  State 
searchers  for  his  bottles,  kegs,  etc.  The  premises  of  a  citizen 
cannot  be  intruded  upon,  under  a  search-warrant,  for  any  such 
])rivate  purpose.  Bishop,  in  his  work  on  Criminal  Procedure 
(vol.  1,  sec.  710),  states  the  rule  by  quoting  from  the  opinion 
in  Robinson  v.  Richardson,  13  Gray,  454,  as  follows:  "Search- 
warrants  were  never  recognized  by  the  common  law  as  processes 
which  might  be  availed  of  by  individuals  in  the  course  of  civil 
proceedings  or  for  the  maintenance  of  any  mere  private  right^ 


'■■'■  ;■ 


3G6 


AMERICAN  CRIMINAL  REPORTS. 


but  their  use  was  confined  to  cases  of  public  prosecutions  in- 
stituted and  pursued  for  the  suppression  of  crime  or  the  detec- 
tion or  punishment  of  criminals.     Even  in  those  cases,  if  we 
may  rely  on  the  aiithority  of  Lord  Coke,  their  legality  was 
formerly  doubted ;  and  Lord  Camden  said  that  they  crept  into 
the  law  by  imperceptible  practice.    But  their  legality  has  long 
been  considered  to  be  established  on  the  ground  of  public  neces- 
sity, because  without  them  felons  and  other  malefactors  would 
escape  detection."    The  record  in  this  case  illustrates  the  well- 
understood  purpose  of  the  act  as  well  as  the  manner  of  its  prose- 
cution.    The  complaint  and  warrant  are  each  a  printed  form 
not  intended  to  describe  a  particular  offense,  but  made  in  ad- 
vance to  fit  all  cases,  ready  to  be  sworn  to,  without  regard  to  the 
facts  of  particular  cases.     The  property  charged  to  be  in  the 
possession   of   the  defendant   and   directed  to  be  seized  and 
brought  before  the  court  is  a  part  of  the  printed  matter,  for  use 
on  all  occasions.    The  printed  complaint  describes  the  property 
as  "four  hundred  of  said  bottles  and  forty  of  said  cases  and 
boxes,"  and  the  warrant  as  "said  forty  casks,  barrels,  kegs,  boxes 
and  said  four  hundred  bottles,  or  some  part  thereof."     Xo 
wonder  there  should  be  a  variance  between  such  an  affidavit  or 
warrant  and  the  facts  of  the  particular  case,  as  there  was  here. 
This  section  of  our  constitution  is  identical  with  the  foui-th 
amendment  to  the  constitution  of  the  United  States,  except  that 
it  substitutes  the  word  "affidavit"  for  "oath  or  affirmation."    It 
is  a  step  beyond  the  constitution  of  the  United  States,  in  re- 
quiring the  evidence  of  probable  cause  to  be  made  a  permanent 
record  in  the  fonn  of  an  affidavit,  otherwise  it  is  the  same.    It 
has  been  uniformly  held,  wherever  the  question  has   arisen 
under  a  statute  or  constitution  containing  such  provision,  that 
the  oath  or  affirmation  must  show  probable  cause  arising  from 
facts  within  the  knowledge  of  affiant,  and  miist  exhibit  the  facts 
upon  which  the  belief  is  based,  and  that  his  mere  belief  is  not 
sufficient.     United  States  v.  Tnrennd,  20  Fed.  Rep.  621;  Joltn- 
son  V.  United  States,  87  id.  187.    The  constitutional  provisions 
OTi  this  subject  had  their  origin  in  the  abuse  of  executive  au- 
thority, and  their  design  is  to  substitute  judicial  discretion  for 
arbitrary  power,  so  that  the  security  of  the  citizen  in  his  prop- 
erty shall  not  be  at  the  mercy  of  iiulividuals  or  officers.     The 


LIPPMAN  V.  PEOPLE. 


867 


gonci'al  statute  authorizing  search-warrants,  contained  in  the 
Criminal  Code,  fully  recognizes  this  rule  by  the  requirement 
tliat  the  judge  or  justice  of  the  peace  shall  be  satisfied  that  there 
is  reasonable  cause  for  the  belief  of  the  affiant,  before  he  shall 
issue  his  warrant.  Wlierever  a  statute  requires  probable  cause, 
supported  by  oath  or  afiirmation,  the  complaint  must  set  up 
facts  and  cannot  rest  on  mere  belief,  which  will  not  satisfy  the 
roquii'ement.  Blythe  v.  Tompkins,  2  Abb.  Pr.  4G8;  People  v. 
lleffron,  53  Mich.  527;  Ex  parte  Dimmig,  74  Cal.  104.  A 
search-warrant  can  only  be  granted  after  a  showing  made  be- 
fore a  magistrate,  under  oath,  that  a  crime  has  been  committed, 
and  the  law,  in  requiring  a  showing  of  probable  cause,  sup- 
ported by  affidavit,  intends  that  facts  shall  be  stated  which  shall 
satisfy  the  magistrate  that  suspicion  is  well  founded.  The  mere 
expression  of  opinion,  under  oath,  is  no  ground  for  the  war- 
rant, except  as  the  facts  justify  it.  Cooley's  Const.  Lim. 
(4tli  ed.)  372.  "The  warrant  is  not  allowed  to  obtain  evidence 
of  an  intended  crime,  but  only  after  lawful  evidence  of  an 
offense  actually  committed."  Ibid.  374.  The  act  now  under 
consideration  does  not  even  require  an  aflSdavit  that  any  offense 
has  been  committed,  and  an  affidavit  which  fulfills  its  condi- 
tions belongs  to  a  class  universally  condemned  by  every  author- 
ity, when  used  to  disturb  a  citizen  in  the  security  guaranteed 
him  by  the  constitution.  It  requires  nothing  but  the  belief  of 
tlio  party  making  the  affidavit,  and,  as  he  is  not  required  to 
state  any  fact  or  satisfy  the  magistrate  that  there  is  reason- 
able ground  for  his  belief,  he  may  just  as  well  swear  by  whole- 
sale, according  to  the  printed  form,  to  four  hundred  bottles  and 
forty  kegs  as  to  his  affidavit  to  the  facts  of  a  particular  case. 
The  act  attempts  to  transfer  the  judicial  discretion,  which  the 
constitution  intended  should  be  exercised  by  the  magistrate, 
from  that  officer  to  the  party  making  the  affidavit.  The  vesting 
of  such  discretion  in  the  magistrate  has  been  the  main  purpose 
of  constitutional  provisions  of  this  character,  while  this  act  de- 
stroys the  protection  secured  and  permits  the  affiant  to  pass 
upon  the  question  of  probable  cause. 

The  search-warrant  appears  to  be  intended  as  a  means  of  col- 
lecting evidence.  The  act  not  only  avoids  the  requirement  of 
an  affidavit  that  any  crime  has  been  committed,  but  it  only  pro- 


.  4 


m 


m 

■   I 
I 


368 


AMERICAN  CRIMINAL  REPORTS. 


vides  that  the  party  accused  shall  be  arrested  in  case  beer  but- 
tles, or  other  property  described  in  the  act,  is  found  about  his 
premises,  and  when  such  property  is  brought  before  the  coiu't 
the  act  makes  no  provision  for  the  disposition  of  it.  It  is  only 
after  a  search  by  the  officer  for  bottles,  kegs  and  the  like  that  lie 
learns  whether  he  is  to  arrest  the  defendant  or  not,  and  if  he 
fails  to  find  them  no  arrest  is  to  be  made.  This  shows  that  the 
object  of  the  search-warrant  is  to  obtain  evidence,  and  if  it  is 
not  obtained,  that  is  the  end  of  the  prosecution.  Such  a  search 
is  an  imreasonable  one.  In  Glennon  v.  Britton,  155  111.  232, 
the  proceeding  was  against  the  offending  thing  it?elf,  where 
the  public  was  interested  in  its  destruction  for  the  mrpose  of 
stopping  immoral  practices  and  crime,  and  it  was  immaterial 
whether  service  was  had  on  the  person  in  whose  possession  it 
might  be  found.  There  is  no  such  element  in  this  case,  but  the 
only  purpose  is  to  aid  the  individual  to  collect  his  property. 
The  search  provided  for  in  the  act  is  unreasonable,  under  the 
authorities,  for  the  reasons  We  have  given,  and  the  provision  is 
in  violation  of  the  constitution. 

These  questions  were  neither  considered,  nor  decided  in  Peo- 
ple i\  Cannon,  139  N.  Y.  32,  which  is  the  main  reliance  of 
counsel  to  sustain  this  act.  The  New  York  statute  is  much 
more  compi'ehensive  than  this  act  and  includes  dealers  in  milk 
and  cream  and  manufacturers  and  dealers  in  medicines,  ■med- 
ical preparations,  perfumery  and  compounds  or  mixtures, 
well  as  those  embraced  in  the  terms  of  this  act.  The  vaii'i.r>' 
of  that  statute  was  tested  on  the  claims  that  it  granted  a  moii  , 
oly  to  the  manufacturers  of  beverages  by  prohibiting  the  re- 
sale or  gift  by  a  purchaser  of  the  contents  of  a  bottle  which  the 
manufacturer  refused  to  sell,  and  that  it  destroyed  or  unlaw- 
fiilly  decreased  the  trade  in  empty  bottles  which  is  a  legitimate 
ti'ade  and  entitled  to  the  equal  protection  of  the  law.  The  stat- 
ute was  held  not  subject  to  the  first  objection,  and  it  was  said 
that  a  buyer  of  the  contents  could  sell  the  same  in  the  bottle  and 
deliver  tlie  bottle  Avith  the  contents.  As  to  the  second  objection, 
it  was  held  that  the  additional  care  required  of  a  dealer  in  buy- 
ing empty  bottles  was  not  an  unreasonable  restriction.  The 
statute  only  applied  where  the  bottle  was  not  purchased  with 
the  contents  from  the  person  or  corporation  whose  trade-mark 


LIPPMAN  V.  PEOPLE. 


869 


was  on  it,  and  in  the  three  cases  heard  together  the  judgments 
in  two  were  reversed  because  there  had  been  deposits  of  money 
as  security  for  the  return  of  the  bottles,  which  amounted  to  a 
conditional  sale  of  them.  The  decision  is  not  an  authority  on 
any  proposition  in  this  case. 

The  judgment  is  reversed.    Judgment  reversed. 


Notes  upon  the  Law  Relating  to  Chiminal  Complaints  (by  J.  F.  G.). 
Although  the  act  in  question  was  designed  for  a  particular  class  of 
search-warrants,  the  decision  in  the  Lippman  Case  is  based  upon  the 
right  of  Ihe  people  to  "be  secure  in  their  persons,  houses,  papers  and 
effects  against  unreasonable  searches  and  seizures,"  and  is  an  authority 
of  more  than  ordinary  value,  not  only  as  to  search-warrant  proceed- 
ings, but  in  any  case  where  process  issues  on  oath,  affirmation  or 
affidavit  for  the  seizure  of  a  person  or  persons.  It  matters  not  whether 
such  process  issues  from  a  justice  of  the  peace  upon  a  criminal  or 
supposed  criminal  charge  or  from  a  court  of  record,  as  a  writ  in  a 
civil  case,  the  application  of  the  doctrine  must  be  the  same. 

In  these  notes  we  shall  treat  of  the  subject  principally  as  it  applies 
to  criminal  complaints. 

While  it  is  generally  conceded  that  no  warrant  shall  issue  except 
upon  a  charge  made  under  oath,  the  practice  as  to  how  such  oath  shall 
be  made  depends  largely  upon  the  provisions  of  the  constitution  or 
the  statutes  controlling  the  tribunal  from  which  the  \s  arrant  is  prayed. 

By  the  fourth  amendment  of  the  United  States  constitution,  it  is  pro- 
vided "that  no  warrant  shall  issue  but  upon  probable  cause  supported 
by  oath  or  affirmation,"  which_  requirement  might  be  fully  complied 
with  in  proceedings  before  a  United  States  commissioner  by  simply 
hearing  the  oral  testimony,  unless  such  practice  would  be  contrary 
to  the  practice  of  the  State  in  which  the  commissioner  at  the  time  is 
sitting  (U.  S.  R.  S.,  sec.  1014).  In  this  regard  the  constitut'on  of  Wis- 
consin is  identical  with  the  fourth  amendment  of  the  United  States 
constitution;  and  it  is  there  held  that  the  complaint  itself  need  not 
be  under  oath;  but  that  the  magistrate  may  call  in  witnesses  and  ex- 
amine them,  and  on  such  oral  testimony  base  a  warrant.  State  v. 
Davies,  62  Wis.  305. 

The  corresponding  provision  in  the  Michigan  constitution  is  the 
same  as  that  of  the  Federal  and  of  the  Wisconsin  constitutions.  The 
Michigan  statutes  controlling  proceedings  before  an  examining  magis- 
trate provide  that,  upon  complaint  being  made,  the  magistrate  shall 
examine  the  complainant  and  any  witnesses  produced  by  him,  and  if 
cause  is  shown  shall  issue  a  warrant.  In  construing  this  statute,  it 
has  been  held  that,  although  a  complaint  is  a  necessary  prerequisite  to 
authorize  a  magistrate  to  hear  testimony  as  a  basis  for  warrant,  the 
complaint  need  not  be  under  oath,  nor  reduced  to  writing;  but  that  the 
warrant  issues  on,  and  must  accord  with,  the  oral  testimony,  and  may 
be  for  an  offense  of  a  different  grade  or  name.  People  v.  Kuhler,  93 
Mich.  626;  People  v.  Evans,  72  Mich.  385;  Stuart  v.  People,  42  Mich. 
Vol.  XI  — 24 


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AMERICAN  CRIMINAL  REPORTS. 


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255;  Yance  v.  People,  34  Mich.  286;  Ttirner  v.  People,  33  Mich.  309. 
Thus  a  man  may  complain  that  three  men  assaulted  and  endeavored 
to  kill  him,  but  upon  hearing  of  the  testimony  in  the  ex  parte  pro- 
ceeding the  magistrate  may  issue  a  warrant  for  riot. 

A  review  of  the  Illinois  constitutioriH,  statutes  and  decisions. — Sec- 
tion 7,  article  8,  of  the  Illinois  constitution  of  1818,  reads  as  follows: 

"That  the  people  shall  be  secure  in  their  persons,  houses,  papers  an<l 
possessions,  from  unreasonable  searches  and  seizures;  and  that  gen- 
eral warrants  whereby  an  officer  may  be  commanded  to  search  sus- 
pected places  without  evidence  of  the  fact  committed,  or  to  seize  any 
person  or  persons  not  named,  whose  offenses  are  not  particularly  de- 
scribed and  supported  by  evidence,  are  dangerous  to  liberty,  and  ought 
not  to  be  granted." 

Following  the  adoption  of  the  constitution  in  181c.  the  first  general 
assembly,  on  March  23,  1819,  enacted,  "That  it  shall  be  lawful  tor 
any  justice  of  the  peace,  upon  oath  being  made  before  him,"  etc.,  to 
Issue  a  warrant  (Laws  of  1819,  p.  193),  which  was  re-enacted  in  the 
Act  of  February,  1823. 

With  the  constitution  and  statutes  reading  as  above,  the  Supreme 
Court,  at  the  December  term,  1822,  held  that  an  action  for  false  im- 
prisonment could  be  maintained  against  a  Justice  of  the  peace  who 
Issued  a  warrant,  based  upon  an  affidavit,  which  on  its  face  did  not 
state  facts  constituting  a  crime  (Moore  v.  Watts,  Breese,  18;  B.  B.  42); 
but  at  the  December  term,  182G,  it  held  that  a  declaration  in  trespass 
was  bad  on  demurrer,  \vhere  it  averred,  in  a  suit  against  both  the  jus- 
tice and  constable,  that  the  warrant  directed  the  arrest  of  the  plaintiff, 
"to  answer  the  complaint  of  Edward  Valentine  in  a  case  of  assault 
and  battery,  and  threats  of  his  life,  on  the  night  of  the  18th  of  this 
Instant,  wherein  he  has  this  day  personally  appeared  before  me,  and 
solemnly  swore  that  they  struck,  kicked  and  whipped  him,  so  as  to 
mangle  his  body  most  cruelly."  Flack  v.  Ackney,  Breese,  144;  B.  B. 
187.  In  the  latter  case  we  are  not  informed  whether  or  not  the  com- 
plaint was  in  writing;  but  in  another  case  decided  at  the  same  term 
there  is  a  strong  implication  that  it  should  be.  Flack  v.  Harrington, 
Breese,  165;  B.  B.  213. 

The  act  of  January  6,  1827  (Revised  Code  of  Laws,  1827,  p.  170),  was 
somewhat  broader  in  its  language  than  the  previous  statute.  It  pro- 
vided as  follows: 

Sec.  3.  "It  shall  be  lawful  for  any  of  the  aforenamed  judges  or  jus- 
tice of  the  peace,  upon  oath  or  affirmation  being  made  before  him,  that 
any  person  or  persons  have  committed  any  criminal  offense  in  this 
State,  or  that  a  criminal  offense  has  been  committed,  and  that  the 
witness  or  witnesses  have  reasonable  grounds  to  suspect  that  such 
person  or  persons  have  committed  the  same,  to  issue  his  warrant 
under  his  hand,"  etc. 

Under  this  act  it  would  seem  that  the  warrant  would  issue  on  the 
evidence  of  a  witness  or  witnesses,  whether  such  evidence  be  oral  or 
in  writing;  but  upon  this  statute  we  do  not  find  any  adjudicated  case. 

The  constitution  of  1848  adopted  the  language  of  that  of  1818,  above 


LIPPMAN  V.  PEOPLE. 


371 


quoted;  but  the  doubt  was  finally  settled  b^  the  constitution  of  1870, 
sect  ion  6,  of  the  Bill  of  Rights,  being  as  follows: 

"The  right  of  the  people  to  be  secured  in  their  persons,  houses,  pa- 
pers and  effects  against  unreasonable  searches  and  seizures  shall  not  be 
violated;  and  no  warrant  shall  issue  without  probable  cause,  supported 
by  affidavit,  particularly  describing  the  place  to  be  searched  and  the 
persons  or  things  to  be  seized."  The  constitutions  of  1818  and  1848  re- 
quired that  the  probable  cause  for  the  issuance  of  a  warrant  should  ap- 
pear by  evidence;  and  that  any  warrant  issuing  without  such  evidence 
is  "dangerous  to  liberty,  and  ought  not  to  be  granted."  Not  In  the 
least  is  this  rule  relaxed  by  section  6  of  the  Bill  of  Rights;  but  the 
guaranty  is  made  stronger  by  the  additional  requirement  that  such  evi- 
dence shall  be  by  "affidavit."  An  affidavit  is  a  statement  of  facts,  ma- 
terial to  the  matter  under  inquiry,  expressed  in  writing,  with  that  de- 
gree of  certainty  and  clearness  that  if  falsely  made  affiant  may  be  pun- 
ished for  perjury.  Myers  v.  People,  67  111.  503;  People  v.  Becker,  20 
N.  Y.  354;  Miller  v.  Munson,  34  Wis.  579;  Neal  v.  Gordon,  60  Ga.  112; 
Ejc  parte  Lane,  6  Fed.  Rep.  34;  Ex  parte  Dimmig,  74  Cal.  164;  People  v. 
Hcfl'ron,  53  Mich.  527;  Judge  McAllister's  opinion  in  People  ex  rel. 
Smith  V.  Brown,  6  Chi.  Legal  News,  392,  ante,  p.  354. 

Sec.  2,  div.  7,  of  the  Criminal  Code,  was  evidently  drafted  under  a 
misapprehension  or  oversight  of  section  6  of  the  Bill  of  Rights,  for 
that  section  reads  as  follows: 

"Upon  complaint  being  made  to  any  such  judge  or  justice  of  the 
pence,  ^hat  any  such  criminal  offense  has  been  committed,  he  shall  ex- 
amine on  oath  the  complaint  and  any  witness  produced  by  him,  shall 
reduce  the  complaint  to  writing  and  cause  it  to  be  subscribed  and 
sworn  to  by  the  complainant;  which  complaint  shall  contain  a  concise 
statement  of  the  offense  charged  to  have  been  committed,  and  the  name 
of  the  person  accused,  and  that  the  complainant  has  just  and  reason- 
able grounds  to  believe  that  such  person  committed  the  offense." 

The  general  assembly  may  increase  the  guaranties  of  personal  se- 
curity; but  it  cannot  curtail  or  abridge  any  rights  declared  by  the 
constitution.  It  may  be  that  an  oral  examination  under  oath  of  the 
complainant  and  his  witnesses  is  a  necessary  prerequisite  to  the  draft- 
ing of  the  complaint,  and  that  an  additional  oath  must  be  then  ad- 
ministered when  the  complaint  is  signed;  but  if  the  complainant  signs 
and  swears  to  a  complaint,  basing  his  oath  simply  upon  the  evidence 
of  other  witnesses,  such  complaint  does  not  possess  the  character  of  an 
affidavit,  and  is  not  a  strict  compliance  with  the  requirement  of  the 
constitution,  because  he  could  not  be  held  responsible,  under  an  in- 
dictment for  perjury,  for  a  false  statement  made  by  one  or  more  of 
his  witnesses.  It  would  seem  that,  to  comply  with  the  present  consti- 
tution of  Illinois,  the  statements  of  each  witness  should  be  reduced  to 
writing,  signed  and  sworn  to  by  the  witness  making  such  statement; 
otherwise  the  probable  cause  does  not  appear  by  affidavit.  In  cases 
under  division  9  of  the  Criminal  Code,  where  a  Justice  has  final  juris- 
diction, simply  an  affidavit  is  required.  Compare  section  1,  division 
5,  of  the  Criminal  Code,  in  relation  to  peace  warrants,  and  section  1, 


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AMERICAN  CRIMINAL  REPORTS. 


division  8,  of  the  Criminal  Code,  in  relation  to  search-warrants,  with 
section  6  of  the  Bill  of  Rights. 

A  very  interesting  and  instructive  case  upon  this  subject  is  that  oi: 
Houah  V.  People,  75  111.  487.  A  constable  by  the  name  of  Thurnian 
arrested  a  man  answering  to  the  description  given  in  the  State  war- 
rant, and  delivered  the  prisoner  to  Housh,  who  was  also  a  constable, 
The  prisoner  escaped,  and  Housh  was  indicted  and  convicted  for  per- 
mitting such  escape.  The  warrant  in  question  was  based  upon  a  com- 
plaint which  read  as  follows: 
"  State  of  Ilmnoih,  ) 
Knox  County,       > 

"The  complaint  and  Information  of  George  Huggins,  of  Knox  town- 
ship in  said  county,  made  before  James  Moore,  Esquire,  one  of  the  jus- 
tices of  the  peace  in  and  for  said  county,  on  the  sixth  day  ot"  May, 
1873,  who,  being  duly  sworn,  upon  his  oath  says  that.  In  Knox  town- 
ship, in  the  said  county,  on  the  25th  day  of  April,  1873,  he  had  a  sad- 
dle and  theep  skin  stolen  from  his  barn  in  said  place,  and  that  ho 
verily  believes  they  are  now  in  possession  of  a  man,  name  unknown, 
a  large  size  man,  riding  a  sorrel  mare  with  a  light  mane  and  tail,  and 
young  colt  running  after,  when  last  seen;  who  stayed  last  night  at 
Edmund  Russel's,  in  Persifer  township,  this  county.  He  therefore 
prays  that  the  said  unknown  described  man  may  be  arrested,  and 
dealt  with  according  to  law. 

"GKOnCE   HCGOINS. 

"Subscribed  and  sworn  to  before  me,  this  sixth  day  of  May,  1873. 

"James  Moore, 
"Justice  of  the  Peace." 

The  court  held  that  the  complaint  was  insufficient  to  comply  with 
section  6  of  the  Bill  of  Rights,  the  court  saying:  "From  aught  that 
appears  in  this  affidavit,  the  prisoner  may  have  honestly  come  to  the 
possession  of  the  property  claimed  to  have  been  stolen,  by  purchase, 
or  by  borrowing  or  finding  it,  and  this  may  have  been  known  to  the 
person  making  the  affidavit.  There  is  nothing  in  the  affidavit  neces- 
sarily inconsistent  with  this  idea.  Without  saying  more,  it  is  suffi- 
cient that,  in  our  opinion,  the  affidavit  was  insufficient  to  give  juris- 
diction for  the  purpose  of  issuing  the  warrant." 

The  court  further  held  that,  as  the  warrant  was  regular  upon  its 
face,  the  constable,  Housh,  would  have  been  protected  from  an  action 
of  false  imprisonment;  but  that,  as  the  warrant  was  based  upon  an  in- 
sufficient affidavit,  which  did  not  give  the  justice  jurisdiction,  that 
he  was  justified  in  permitting  the  prisoner  to  escape.  The  conviction 
was  reversed. 

The  Schustek  Case. — As  a  concise,  comprehensive  and  correct  ex- 
position of  the  law  relating  to  criminal  complaints,  there  are  but  tew, 
if  any,  opinions  superior,  if  equal,  to  that  of  Judge  Chetlain,  rendered 
as  presiding  judge  of  the  Criminal  Court  of  Cook  County,  in  discharg- 
ing John  Schustek  upon  a  writ  of  habeas  corpus  in  September,  189G. 
It  appears  in  full  in  the  Chicago  Law  Journal  (Weekly)  of  September 
25,  1896,  Chicago  Law  Journal  (Monthly),  October,  No.  1896,  People 
ex  rel  Schustek  v.  Pease,  29  Chicago  Legal  News,  33,  and  Detroit  Daily 


LIPPMAN  V.  PEOPLE 


873 


Legal  News  of  October  3,  189C.  We  here  give  the  opinion  com- 
plete: 

CiiKTr.AiN,  J.  In  order  to  confer  j.'rlsdlctlon  upon  a  Justice  of  the 
poace,  a  criminal  complaint  must  corith'n: 

Ist.  A  concise  statement  of  facts  hm'.^r  oath.  The  facts  constituting 
the  olTense  should  be  set  out  positively.  It  is  not  sufflrlent  that  the 
t'.uts  be  stated  upon  information  and  belief,  nor  that  the  complainant 
"has  just  and  reasonable  grounds  to  believe"  that  the  facts  constitut- 
ing the  offense  are  true.  The  statute  of  this  State  contemplates  such  a 
definite  statement  of  facts  as  could  be  made  the  basis  of  a  prosecution 
for  perjury,  If  false. 

2d.  It  must  definitely  appear  that  a  crime  has  been  committed. 

3d.  And  that  there  is  probable  cause  for  believing  that  the  defendant 
Is  guilty. 

In  the  case  at  bar,  the  complaining  witness  In  effect  has  only  stated 
that  he  "has  Just  and  reasonable  grounds  to  believe"  that  a  crime  has 
bnen  committed,  which  amounts  to  nothing  more  than  the  statement 
of  the  witness  on  information  and  belief.  In  this  case  the  facts  consti- 
tuting the  crime  are  perhaps  sufficiently  set  out,  and  the  complaint 
would  be  sufficient,  if,  in  addition  to  such  statement,  the  complainant 
had  set  out  in  detail  facts  upon  which  he  based  his  belief  sufficient  to 
show  probable  cause.  It  should  appear  that  the  reasons  for  arresting 
the  defendant  are  not  based  upon  mere  rumor  or  suspicion,  and  in  set- 
ting forth  such  reasons  facts  should  be  set  out  to  negati/e  the  idea  of 
rumor  or  suspicion,  and  to  make  it  appear  to  the  court  that  the  com- 
plaint is  based  on  something  besides  information,  or  belief,  or  rumor, 
or  suspicion. 

In  my  opinion  the  mittimus  In  this  case  is  very  Irregular,  if  not 
fatally  defective.  It  recites  that  John  Schustek  was  examined  on  a 
charge  preferred  against  him  upon  a  complaint  In  writing,  under  oath 
of  one  Imrich  Podkrivacky,  and  that  It  appeared  probable  from  the 
evidence  of  said  witness,  sworn  and  examined  before  the  justice,  that 
said  John  Schustek  was  guilty  of  said  charge.  The  conclusion  to  be 
drawn  therefrom  Is  that  the  defendant  John  Schustek  was  committed 
only  upon  his  own  testimony,  which  would  be  clearly  Illegal.  Boone 
V.  The  People,  148  111.  440.  As  will  be  observed,  the  mittimus  recites 
the  mere  probability  that  a  crime  was  committed.  The  mere  proba- 
bility that  a  crime  was  committed  is  not  sufficient  ground  for  holding 
the  defendant  to  the  grand  Jury,    It  should  appear  from  a  mittimus: 

1st.  That  crime  was  committed  by  some  one; 

2d.  That  it  was  probable  that  the  defendant  was  the  guilty  party. 
Probable  cause  refers  to  the  guilt  of  the  defendant  and  not  to  the  com- 
mission of  the  crime  Itself. 

For  the  reasons  stated,  the  relator  is  discharged. 

Complaints  on  information  and  helief. — There  are  numerous  author- 
ities in  line  with  the  Lippman  Case  and  the  Schustek  Case,  In  holding 
that  a  complaint  which  simply  charges  that  the  complainant  verily 
believes  or  has  good  reasons  to  believe  the  statements  in  the  com- 
plaint Is  not  sufficient  to  give  jurisdiction,  and  that  any  warrant 
issuing  thereon  is  void. 


:   1'! 


f:il 


874 


AMERICAN  CRIMINAL  REPORTa 


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In  Ex  parte  Dimmig,  74  Cal.  164,  15  Pac.  Rep.  610,  it  was  held  that 
a  warrant  lasued  upon  a  charge  of  murder  was  void  and  the  prlsoiirr 
entitled  to  a  discharge  on  a  writ  of  habeas  corpus,  because  the  com- 
plaint upon  which  It  was  founded  was  simply  made  on  information 
and  belief. 

In  United  States  v.  Collins,  79  Fed.  Rep.  65,  the  defendant  was  in- 
dicted for  obstructing  Justice  by  refusing  to  produce  a  letter  in  evi- 
dence In  a  supposed  criminal  proceeding  before  a  United  States  coin- 
missioner;  but  as  the  proceedings  before  the  commisBioner  were  basod 
upon  a  complaint  made  on  information  and  belief,  the  court  quashod 
the  indictment;  holding  that,  as  the  commissioner  had  no  Jurisdiction 
over  the  defendant,  he  had  none  over  the  witness  Collins;  and  that 
Collins  was  not  obliged  to  produce  the  letter  to  be  used  in  evidence 
in  a  void  proceeding.  In  that  case  there  was  nothing  to  show  that  the 
defendant  in  the  proceedings  before  the  commissioner  had  made  any 
objection;  but  the  Judge  evidently  based  his  opinion  upon  the  theory 
that,  if  a  proceeding  is  void,  consent  cannot  confer  Jurisdiction. 

In  Ex  parte  Lane,  6  Fed.  Rep.  34,  an  extradition  proceeding  was  hold 
void,  and  the  prisoner  discharged  because  of  the  same  defect  in  the 
complaint. 

In  Ex  parte  Hart,  11  C.  C.  A.  165,  63  Fed.  Rep.  249,  the  United  States 
court  of  appeals  announced  the  same  doctrine  in  discharging  a  pris- 
oner held  on  an  extradition  warrant.  This  case  is  more  extensively 
reviewed  on  pages  308,  309,  310  of  vol.  10,  American  Criminal  Reports. 

In  treating  of  this  subject  in  United  States  v.  Sapinkoiv,  90  Fed. 
Rep.  654,  Judge  Thomas  said:  "Aside  from  the  questions  discussei), 
it  is  claimed  that  the  warrant  of  arrest  was  issued  without  Juris- 
diction, because  the  complaint  herein  was  not  on  such  oath  as  is  re- 
quired by  the  United  States  constitution  and  the  Revised  Statutes 
(sec.  1014).  The  warrant  is  issued  on  the  complaint  of  one  Kassel,  a 
private  citizen,  and  all  the  statements  of  alleged  fact  rest  upon  infor- 
mation and  belief.  No  grounds  of  information  are  stated,  but  depo- 
nent's belief  is  stated  to  be  based  upon  falsely  made  cigarettes 
(whatever  that  means)  purporting  to  be  his  (deponent's  intending) 
manufacture,  which  were  not  his  manufacture,  and  wliich  bore  depo- 
nent's stamps,  which  cigarettes  had  been  sold  by  the  defendant.'  How 
did  the  deponent  know  that  the  defendant  sold  these  false  cigarettes? 
He  has  just  sworn  to  the  fact  on  information  and  belief.  Is  he  using 
alleged  facts,  which  he  knows  only  on  information  and  belief,  as  a 
statement  of  the  bases  of  his  belief?  It  appears  so  to  the  court.  With- 
out examining  the  decisions  cited  by  the  learned  counsel  for  the  de- 
fendant, it  is  evident  that  the  complainant  has  not  stated  any  grounds 
either  for  his  information  or  belief.  Did  he  know  where  defendant's 
place  of  manufacture  was?  Did  he  know  or  hear  of  the  defendant 
doing  any  of  the  acts  alleged  against  him?  Did  he  see  any  of  the 
cigarettes  sold?  Does  he  know  or  hear  of  any  fact  or  circumstance  in 
any  degree  connecting  the  defendant  with  any  of  the  transactions 
alleged  on  Information  and  belief?  If  so,  why  did  he  not  state  when 
and  where  he  derived  his  knowledge?  As  his  affidavit  stands,  the 
deponent  has  stated  on  his  inforniation  and  belief  that  the  defendant 


LIPPMAN  V.  PEOPLE. 


375 


was  guilty  of  various  acta  and  omissions,  but  he  falls  utterly  to  give 
tho  sllKhtest  Bubstantlation  of  such  Information  and  belief,  or  either." 

Upon  this  subject  see  also  People  ex  (el.  O'Niell  v.  Shields,  30  Chi. 
Lrgal  News,  340;  Ex  parte  Svilth,  3  McLean,  121;  In  re  Coleman,  15 
Uiiitih.  40fi;  United  States  v.  Tureaud,  20  Fed.  Rep.  621;  State  v.  Dan 
Goixl.  77  Tenn.  250. 

A  complaint  %vhich  does  not  state  the  facts  is  insufficient. — The  fol- 
lowing Is  the  opinion  in  full  in  State  v.  Fiske,  20  R.  I.  416.  28  Atl. 
Rop.  348: 

Tiu.iN(iiiAST,  J.  The  complaint  in  this  case  charges  that  the  defend- 
ant "was  found  behaving  in  a  noisy  and  disorderly  and  Indecent  man- 
ner, and  did  assist,  encourage  and  promote  the  same  to  be  done  by 
otluTs,  to  the  annoyance  and  disturbance  of  a  portion  of  the  peaceable 
inhabitants  of  the  town  of  East  Greenwich,  against  the  ordinances  of 
the  Fakl  town."  At  the  trial  of  the  case  in  the  court  of  common  pleas, 
the  defendant  moved  that  the  complaint  be  quashed  on  the  ground  of 
duplicity,  and  also  for  uncertainty  in  charging  the  offense,  which  mo- 
tion was  overruled,  whereupon  the  defendant  was  tried  and  found 
guilty  as  charged.  The  defendant  then  moved  in  arrest  of  judgment 
on  the  same  ground  aa  above  stated,  which  motion  was  also  overruled, 
to  each  of  which  said  rulings  exception  was  duly  taken.  The  case  ia 
now  before  this  court  on  exceptions  to  said  rulings,  and  also  to  the 
ruling  of  the  court  excluding  certain  testimony  offered  by  the  defend- 
ant at  said  trial.  We  think  the  complaint  Is  insufficient  on  the  ground 
of  uncertainty.  It  fails  to  inform  the  lefendant  of  the  particular 
offense  for  which  he  Is  to  be  tried.  In  that  the  language  used,  while  fol- 
lowing that  of  the  ordinance,  does  not  so  far  Individuate  the  offense 
as  to  give  the  defendant  proper  notice  of  what  it  really  is.  In  Began, 
Pelitioner,  12  R.  I.  309,  this  court,  while  holding  that  the  word  "revel" 
had  a  precise  and  definite  meaning,  yet  Intimated  that  it  might  be  nec- 
essary in  connection  with  the  other  charges  in  the  complaint,  which 
were  quite  similar  to  those  in  the  case  now  before  us,  to  particularly 
set  forth  the  circumstances  connected  with  the  disorderly  and  Indecent 
conduct  set  forth  In  the  complaint.  We  think  that  to  merely  charge 
one  with  "behaving  in  a  noisy,  disorderly  and  Indecent  manner,"  with- 
out any  specification  as  to  what  constituted  such  behavior,  or  even  that 
it  was  in  a  public  place  in  said  town,  Is  too  vague  and  indefinite  to 
answer  the  requirements  of  criminal  pleading.  State  v.  Smith,  17  R.  I. 
371,  and  cases  cited;  McJunkins  v.  State,  10  Ind.  140;  Bell  v.  State, 
1  Swan,  42. 

As  we  are  of  the  opinion  that  the  complaint  Is  insufficient  for  the 
reason  above  given,  it  is  unnecessary  to  consider  the  other  exceptions. 

Exceptions  to  the  overruling  of  defendant's  motion  in  arrest  of 
judgment  sustained,  and  judgment  arrested. 

In  State  v.  Murray,  41  Iowa,  580,  the  information  (a  complaint  is 
called  an  information  in  Iowa)  charged  that  the  defendants  "did  wil- 
fully and  mallciousl'  assault  one  Bridget  McCoy,  contrary  to  the  stat- 
utes in  such  cases  made  and  provided,"  etc.  The  defendants  were 
convicted  before  a  justice  of  the  peace  and  appealed.  In  the  district 
court  they  demurred  to  the  information,  which  demurrer  was  over- 


376 


AMERICAN  CRIMINAL  REPORTS. 


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I      i' 


ruled;  and  upon  trial  the  defendants  were  again  convicted,  and  ap- 
pealed to  the  Supreme  Court,  where  the  judgment  was  reversed,  the 
following  being  the  opinion  in  full: 

MiLLEK.  C.  J.  Section  5057  of  the  Revision  (Code,  sec.  46G2)  pro- 
vides that  an  information  before  a  justice  of  the  peace,  charging  the 
commission  of  a  public  offense,  "must  contain  ...  a  statement  of 
the  acts  constituting  the  offense  iii  ordinary  and  concise  language,  and 
the  time  in  and  place  of  the  commission  of  the  offense,  as  ntar  as 
may  be. 

The  information  in  this  case  fails  to  comply  with  this  provision  of 
the  statute,  in  that  the  "acts  constituting  the  offense"  are  not  stated 
therein.  It  accuses  the  defendants  with  committing  an  assault,  for 
that  they  committed  an  assault.  It  would  not  do  to  accuse  a  persoa 
with  the  crime  of  larceny,  and  merely  allege  that  he  committed  lar- 
ceny at  a  time  and  place  stated.  The  acts  which  in  law  constitute 
larceny  must  be  alleged.  So  in  respect  to  every  criminal  offense.  It 
will  not  do  to  accuse  a  party  with  the  commission  of  a  crime  by  its 
technical  name  merely.  The  acts  which  malie  up  the  offense  must  be 
charged.  This  icas  so  wifhoiit  the  statute.  The  judgment  must  be 
reversed. 

In  Cranor  v.  State,  39  Ind.  64,  a  complaint  for  assault,  charging  it  to 
be  committed  by  "running  a  horse  against  and  over  Elizabeth  Golden," 
was  held  insufficient  in  that  it  did  not  comply  with  the  statutory  defi- 
nition of  assault,  and  charge  that  it  was  done  in  a  rude,  insolent,  or 
angry  manner.    To  the  same  effect,  see  Slusser  v.  State,  71  Ind.  2S0. 

To  constitute  a  valid  complaint  for  perjury,  the  false  testimony 
should  be  set  out. — Two  persons  were  arrested  upon  a  joint  accusation 
of  perjury,  charging  that  they  wilfully,  corruptly  testified  falsely  in 
a  divorce  proceeding  to  a  matter  material  to  the  issues.  Upon  a  con- 
tinuance of  the  hearing  by  the  justice,  they  declined  to  give  bail  and 
sued  out  a  writ  of  habeas  corpus  before  Judge  Balcer,  then  presiding  in 
the  Criminal  Court  of  Cook  County,  who  discharged  them.  The  judge 
held,  citing  Housh  v.  People,  supra,  that  the  facts  constituting  the  of- 
fense should  be  set  out;  and  that,  as  the  false  testimony  was  not  set 
out,  there  was  nothing  to  show  as  to  whether  or  not  it  could  have 
been  material  to  the  issues,  and  that  the  complaint  was  void.  The 
prosecuting  attorney  suggested  the  statute  of  amendments,  but  the 
judge  replied  that  where  there  was  no  jurisiiction  there  was  nothing 
to  amend.    Ex  parte  Czack,  Chi.  Law  Bui.,  April  11,  1896. 

In  the  Warenzak  Case,  Chi.  Law  Bui.,  April  26,  1897,  a  similar  ap- 
plication was  made  to  Judge  Chetlain;  the  charging  part  of  the  com- 
plaint being  as  follows:  "Said  complainant,  being  duly  sworn  upon  his 
oath,  says  that  on,  to  wit,  the  thirteenth  day  of  April,  1897,  and  in  the 
county  aforesaid,  Antoni  Warenzek,  having  taken  a  lawful  oath  in  a 
judicial  proceeding  before  Waldemar  Bauer,  justice  of  the  peace,  in  a 
matter  where  by  law  an  oath  was  required,  swore  falsely  in  a  matter 
material  to  the  issues  or  point  in  question."  In  a  short  written  opin- 
ion the  court  said:  "The  complaint  does  not  comply  with  the  require- 
ments of  the  Bill  of  Rights,  section  VI,  and  section  II,  division  VII, 
of  the  Criminal  Code,  and  therefore  did  not  confer  any  authority  upon 
the  justice  to  issue  his  warrant  for  the  arrest  of  the  relator.    The  com- 


LIPPMAN  V.  PEOPLE. 


377 


plaint  does  not  contain  a  concise  statement  of  facts  regarding  the  sup- 
posed offense,  and  does  not  set  out  the  supposed  false  matter  testified 
to  by  the  relator  upon  which  a  charge  of  perjury  was  claimed  to  be 
based;  accordingly  the  justice  had  no  authority  to  issue  the  warrant, 
and  all  of  his  proceedings  upon  the  coraplaini  were  without  jurisdic- 
tion and  void.  Ex  parte  Czack,  Chi.  Law  Bui.,  April  11,  1896;  Moore 
V.  Watts,  Breese,  18;  Housh  v.  The  People,  75  111.  487;  Ex  parte  Dim- 
mig,  74  Cal.  164." 

A  printed  form  made  to  fit  all  cases  alike,  tvith  blanks  for  dates  and 
names,  is  not  a  good  criminal  complaint. — The  following  is  the  opin- 
ion, in  part,  in  Sarah  Way's  Case,  41  Mich.  299  (also  reported  as  In  re 
May,  1  N.  W.  Rep.  1021): 

Campbell,  C.  J.  Sarah  Way  was  hrought  before  us  on  return  to  a 
habeas  corpus,  as  confined  in  the  Detroit  house  of  correction  on  a  con- 
viction of  vagrancy,  set  out  as  committed  "in  violation  of  section  1, 
chapter  78;  title  8,  pages  175  and  176  of  Revised  Ordinances  of  said 
city,  contrary  to  the  ordinances  of  said  city  in  such  case  made  and 
provided." 

It  appears  from  the  commitment  that  she  had  been  arrested  and  con- 
fined in  the  station-house  before  any  complaint;  that  a  complaint  was 
then  made  by  Charles  E.  Reynolds,  a  policeman,  which  contain?  no 
specific  facts,  but  swears  positively,  and  therefore  on  his  re  jyonsibil- 
ity  for  the  oath,  that  on  the  15th  day  of  May,  1879,  and  for  one  month 
preceding,  she  was  unlawfully  and  wilfully  guilty  of  vagrancy,  for 
that,  she  being  an  able-bodied  person,  had  been  during  that  period,  in 
said  city,  lodging,  loitering  and  rambling  about  from  place  to  place, 
neglecting  all  lawful  calling  and  employment,  and  not  having  any 
home  or  visible  u-^ans  of  support,  and  not  giving  a  good  account  of 
herself. 

The  remarkable  character  of  such  a  complaint  is  only  explained  by 
the  fact  that  it  is  entirely  a  printed  form,  except  as  to  names  and 
dates.  It  certainly  is  not  such  a  document  as  ought  to  be  presented 
under  the  constitutioi.al  provision  requiring  that  no  warrant  shall 
issue  without  probable  cause.  Such  comprehensive  and  wholesale 
swearing  to  a  whole  catalogue  of  conditions,  some  of  which  cannot  pos- 
sibly have  been  known  to  the  complainant,  and  none  of  which  are  spe- 
cific, and  the  habitual  use  of  such  documents,  evident  from  the  printed 
forms  of  complaint  and  commitment,  are  not  calculated  to  recommend 
the  proceedings  to  favorable  consideration.  (The  remainder  of  the 
opinion  was  on  other  subjects,  among  them  the  rule  as  to  arrests  with- 
out warrants,  holding  that  it  does  not  apply  to  vagrancy.)  The  re- 
lator was  discharged. 

Where  a  complaint  is  under  oath,  the  complainant  must  be  a  com- 
petent witness. — Except  in  matters  of  personal  violence,  or  in  an  ap- 
plication for  a  peace  warrant,  neither  husband  nor  wife  can  be  a  com- 
plainant against  the  other.  Long's  Case,  32  Chi.  Legal  News,  58; 
Taulman  v.  State,  37  Ind.  353;  State  v.  Berlin,  42  Mo.  572;  Mountz  et 
al.  V.  The  Jailer,  1  Grant  (Pa.),  218. 

The  statement  of  facts  in  a  criminal  complaint  should  be  as  full  and 
clear  as  required  in  an  indictment. — It  is  generally  contended  that  an 
Indictment  should  be  more  specific  than  is  required  for  a  criminal 


37S 


AMERICAN  CRIMINAL  REPORTS. 


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complaint;  but  while  this  may  be  true  as  to  formal  matters,  the  state- 
ment of  facts  in  a  criminal  complaint  should  show  clearly  a  cause  for 
action.  An  indictment  is  the  report,  or  presentation  by  the  grand  jury, 
based  upon  oral  testimony  heard  by  the  grand  jury;  but  a  criminal 
complaint,  at  least  where  an  affidavit  is  required,  is  the  evidence  upon 
which  the  warrant  issues.  In  People  v.  Brady.  56  N.  Y.  182  (190),  the 
New  York  court  of  appeals  held  that  the  statement  of  facts  in  a  com- 
plaint should  be  as  full,  at  least,  as  in  an  indictment.  See  also  Van- 
dever  v.  State,  present  volume,  p.  355. 

Can  a  criminal  complaint  be  amended? — As  to  whether  a  defective 
complaint  can  be  amended,  and  if  so,  to  what  extent,  and  under  what 
circumstances,  is  a  subject  on  which  the  courts  do  not  agree.  The 
logical  inference  is  that,  if  a  cause  for  arrest  is  not  shown,  the  entire 
proceeding  is  void;  and  if  void,  there  is  no  charge  to  amend.  In  Tor- 
rey  li  Glenn  v.  People,  17  111.  105,  a  conviction  was  reversed,  without 
remanding,  because  the  complaint  lacked  in  one  essential  element, 
the  court  saying  that  "the  accusation  did  not  amount  to  an  offense 
against  the  public  law,  and  no  sufficient  charge  was  made  by  amend- 
ment;" but  it  does  not  appear  that  the  subject  of  amendment  had 
been  discussed  in  the  argument.  In  Truitt  v.  People,  88  111.  518,  it 
was  held  that  complaints  could  be  amended,  because  common-law  in- 
formations could  be  amended;  the  court  evidently  not  taking  into  con- 
sideration the  fact  that  there  is  a  wide  distinction  between  common- 
law  informations,  made  by  an  officer  of  the  Crown,  and  criminal  coni- 
plainls;  the  information  being  of  the  nature  of  a  pleading,  while  a 
complaint  is  a  synopsis  of  evidence  made  upon  oath  of  an  individual. 
In  Maynard  v.  People,  135  111.  416,  it  was  sought  to  reverse  a  convic- 
tion of  perjury  upon  the  ground  that  the  false  testimony  was  given  in 
0  bastardy  case,  based  upon  a  defective  complaint;  the  court  held  that, 
although  the  warrant  should  not  have  issued,  because  of  a  defect  in 
the  complaint,  yet  that  which  was  omitted  was  inferred  from  cer- 
tain language  in  the  complaint,  and  that,  as  the  action  was  a  civil  ac- 
tion, the  same  could  have  been  amended,  and  accordingly  was  not  void. 
The  court,  however,  said:  "That  which  is  absolutely  void  is  not  amend- 
able, but  that  which  is  voidable,  merely,  can  be  amended."  The  above 
decisions  should  be  received  with  great  caution;  for,  if  they  arc  not 
overruled,  the  doctrines  announced  are  certainly  modified  by  the  de- 
cision in  Lippman  v.  People  (supra);  and  we  may  draw  this  conclu- 
sion: that  in  any  case  where  a  writ  of  habeas  corpus  should  be  sus- 
tained for  want  of  jurisdiction,  that  the  proceeding  under  the  com- 
plaint is  void,  and  that  the  complaint  cannot  be  amended.  Where  a 
complaint  charges  the  essential  element  of  the  offense,  such  as  larceny 
of  property,  without  describing  the  property,  it  may  be  proper  to 
amend  the  complaint  by  giving  such  description,  simply  as  a  matter 
of  good  pleading,  or  furnishing  of  a  bill  of  particulars;  for  that  only 
makes  specific  that  which  is  already  alleged. 

The  popular  notion  that  a  strict  compliance  with  the  constitutional 
guaranties  of  personal  security  encourages  the  commission  of  crime 
and  the  escape  of  criminals  is  imtenable.  Many  of  those  criminals 
whose  conduct  is  the  most  detrimental  to  society  have  no  more  desire 


LIPPMAN  V.  PEOPLE. 


879 


to  flee  from  justice  than  an  approving  public  I\as  to  prosecute;  while 
the  unpopular  criminal,  who  commits  robbery,  burglary  or  murder,. 
where  the  offense  is  recent,  may  on  reasonable  suspicion  be  appre- 
hended without  the  issuance  of  a  warrant.  4  Blackstone,  295;  Shanley 
V.  Wells,  71  111.  78. 

Other  interesting  cases  upon  this  subject  are:  State  v.  Whittaker,  85 
N.  C.  5G6;  Armstrong  v.  Van  De  Vanter,  21  Wash.  682,  59  Pac.  Rep. 
510;  People  v.  Novak,  24  N.  Y.  St.  Rep.  274;  In  re  Harris,  32  Fed.  Rep. 
5S3;  People  v.  Cramer,  47  N.  Y.  S.  1039,  27  App.  Div.  189;  State  v. 
Dale.  3  Wis.  795;  Fink  v.  Milwatikee,  17  Wis.  26;  Jansen  v.  State,  60 
Wis.  577;  People  v.  Heffron,  53  Mich.  527;  State  v.  Smith,  21  Neb.  552, 
32  N.  W.  Rep.  594;  Thrash  v.  Bennett,  57  Ala.  156;  Ex  parte  Morgan, 
20  Fed.  Rep.  298;  Town  of  Whiting  v.  Doob,  152  Ind.  157;  City  of 
Holilen  V.  Bimrod,  60  Kan.  861,  61  Kan.  13,  18  Pac.  Rep.  558;  Haw- 
thorne V.  State,  6  Tex.  App.  562;  Commonwealth  v.  Clement,  8  Pa. 
Dist.  Rep.  705;  Ackerman  v.  City  of  Lima,  8  Ohio  S.  &  C  P.  Dec.  430; 
^tat>;  V.  Carter,  39  Me.  262;  State  v.  Spencer,  38  Me.  30. 

The  doctrine  as  applied  to  sear ch-icar rants. — The  description  of  the 
property  should  be  as  definite  as  that  of  property  in  a  conveyance. 
To  describe  the  property  as  "the  houses  and  buildings  of  Henry  Ide" 
is  insufficient.  Humes  v.  Tabor,  1  R.  I.  464.  So  also  is  the  descrip- 
tion. "The  premises  of  Aaron  Hyatt  in  said  Milton  and  other  sus- 
pected places,  houses,  stores  or  barns  in  said  Milton."  Gramon  v. 
Ramond.  1  Conn.  40.  So  also,  "The  premises  of  John  Doe,  alias,  in  the 
town  of  B.,  or  in  the  neighborhood  thereof,  in  the  county  of  S."  Ash- 
Icy  V.  Peters,  25  Wis.  621.  Unless  the  warrant  shows  the  preliminary 
proceedings,  the  examination  cf  three  witnesses,  etc..  It  is  ill,  and  no 
presumption  is  indulged  in  favor  of  the  justice.  State  v.  Staples,  37 
Me.  228.  The  affidavit  must  be  positive  in  its  form,  and  a  statement 
on  belief  as  to  the  place  of  concealment  is  insufficient.  White  v. 
Wager,  83  111.  App.  592.  While  great  strictness  is  required  in  the  de- 
scription of  property  alleged  to  be  stolen,  less  partlculLrity  is  required 
for  the  seizure  of  gambling  implements,  where  a  general  description 
is  sufficient. 

The  .tame  doctrine  applied  to  civil  cases. — It  was  held  by  the  Su- 
preme Court  of  Michigan  that  an  affidavit  on  information  and  belief 
was  insufficient  to  sustain  a  capias  for  the  arrest  of  the  defendant 
(Shaw  V.  Ashford.  68  N.  W.  Rep.  281);  and  by  the  Supreme  Court  of 
South  Dakota,  that  such  affidavit  was  bad  even  though  made  in  the 
positive  form,  if  from  the  facts  stated  it  would  appear  to  have  been 
made  upon  information.  Hart  v.  Orant.  8  S.  D.  248.  66  N.  W.  Rep.  322. 
Where,  in  the  early  history  of  Illinois,  the  statutes  provided  for  an  in- 
sufficient affidavit,  even  after  a  practice  of  thirty  years  the  Supreme 
Court  held  that  the  defendant  could  be  discharged  upon  habeas  corpus 
{l-:.r  parte  SmUh,  16  111.  347),  and  that  the  sheriff  was  not  liable  if 
of  his  own  volition  he  released  the  prisoner  {Tattle  v.  Wilson,  24  111. 
B.^3),  which  was  his  duty  to  do  if  the  defect  appeared  on  the  face  of 
the  capias  (Gordon  v.  Frizzcll,  20  111.  291);  and  that  if  the  prisoner 
gave  bail,  the  bond  was  void.  Stafford  v.  Low,  20  111.  152.  In  Town- 
send  V.  Burns,  2  Cromp.  &  J.  468,  Baron  Vaughan  said:  "Affidavits  to 


n 


380 


AMERICAN  CRIMINAL  REPORTS. 


^hold  to  ball  must  be  clear  and  distinct,  and  must  aver  whatever  is 
necessary  to  show  plaintiff's  right  of  action."  In  treating  of  the  same 
subject,  in  Taylor  v.  Forbes,  11  East,  315,  Lord  Ellenborough  said: 
"The  strictness  required  in  these  affidavits  is  not  only  to  guard  de- 
fendants against  perjury,  but  also  against  any  misconception  of  the 
law  by  those  who  make  the  affidavits.  And  the  leaning  of  my  mind  is 
always  to  great  strictness  of  construction  where  one  party  is  to  be 
deprived  of  his  liberty  by  the  act  of  another." 

If  an  affidavit  required  in  a  civil  case  is  made  by  an  attorney,  the 
presumption  is  that  it  was  made  on  information  and  belief,  unless  the 
contrary  appears.  Crotcns  v.  Vail,  51  Hun.  204.  It  is  not  sufficient  for 
an  attorney,  when  making  an  affidavit  for  a  client,  to  state  that  he  is 
well  acquainted  with  the  facts,  but  he  must  show  how  he  is  so  ac- 
quainted. Carter  v.  Rathhone,  1  Hill,  204;  Cribben  v.  Schillenger,  30 
Hun,  248;  Cowles  v.  Harding,  79  N.  C.  577;  Wodien  v.  Hunt,  4  Iowa, 
.355.  See,  also.  Bank  of  Pittsburg  v.  Murphy,  18  N.  Y.  Supp.  575;  Von 
Egan  v.  Hcrold,  19  N.  Y.  S.  456;  Talbert  v.  Strom,  21  N.  Y.  S.  71!). 
The  attorney  should  show  why  he  makes  the  affidavit  instead  of  his 
client.  Griel  v.  Backius,  114  Pa.  St.  187.  An  agent  should  set  forth 
his  source  of  knowledge.    Hamilton  v.  Steamboat  Ironton,  19  Mo.  523. 


I. 


State  v.  Quintini. 

76  Miss.  498—25  So.  Rep.  365. 

Decided  March  27,  1899. 

Criminal  Complaints:   Abbreviations — Information  and  belief. 

1.  In  a  criminal  complaint  the  name  of  the  month  should  be  written 

In  full,  but  if  only  an  ordinary  abbreviation  is  used,  it  can  be 
amended. 

2.  A  criminal  complaint  can  be  made  on  information  and  belief. 

Appeal  from  Circuit  Court  of  Hancock  County;  Hon.  Thacl- 
doas  A.  Wood,  Judge. 

This  was  an  appeal  taken  by  the  State  from  the  judgment  of 
the  court  below  in  qtiasliing  the  complaint. 

Wiley  N.  Nash,  Attorney-General,  for  State. 
No  appearance  for  appellee. 

Terual,  J.  Augustine  Quintini  was  tried  and  convicted  be- 
fore Edwin  P.  Laizer,  a  justice  of  the  peace  of  Hancock  county, 
of  an  assault  and  battery  upon  Henry  Bosette,  and  fined  five 


STATE  r.  QUIXTINL 


881 


dollars,  from  -whicli  conviction  he  appealed  to  the  circuit  court 
(if  said  county,  -where,  on  motion  of  the  said  Quintini,  the  affi- 
davit was  quashed,  and  the  defendant  discharged. 
The  affidavit  is  in  these  words: 

"TiiK  State  of  Mississippi,") 
Hancock  County.  ) 

"Before  me,  Edwin  Laizer,  a  justice  of  the  peace  for  the 
fifth  district  of  said  county  and  State,  Alhert  J.  Carver,  con- 
stalile,  on  information  and  belief,  makes  oath  that  Augustine 
Quintini  did,  on  the  11th  day  of  Aug.,  1S98,  in  the  fifth  dis- 
trict of  Ilan^  ':  county.  Miss.,  within  the  limits  of  said,  jus- 
tice of  the  peace  jurisdiction,  and  within  the  limits  of  the  city 
of  r>ay  St.  Louis,  assault  and  beat  Henry  Bosette,  against  the 
peace  and  dignity  of  the  State  of  Mississippi. 

"Albert  J.  Carver,  Constable. 

"Subscribed  and  sworn  to  before  me  this  12th  day  of  Aug., 
IS 08.  "Edwin  P.  Laizer,  J.  P. 

The  grounds  of  the  action  of  the  learned  circuit  court  are  not 
given  in  the  judgment,  and  we  are  left  to  conjecture  their 
nature. 

The  abbreviations  of  the  names  of  the  month  of  August  and 
of  the  State  of  Mississippi  are  objectionable,  but  if  the  motion 
was  sustained  on  that  ground,  the  State  should  have  been  given 
leave  to  amend  the  affidavit. 

The  affidavit  expresses  the  charge  of  the  crime  in  the  words 
of  the  best  authors,  and  concludes  as  required  by  the  constitu- 
te u,  and  we  find  no  objection  to  it  on  that  account. 

The  brief  of  the  attorney-general  says  that  he  is  informed  by 
tlic  district  attorney  that  the  affidavit  Avas  quashed  because  it 
was  not  made  on  the  personal  knowledge  of  the  affiant. 

The  common  law  was  ever  jealous  of  the  personal  rights  of 
the  subject,  and  its  principles  in  this  respect  are  embodied  in 
section  23  of  the  constitution,  which  secures  all  persons  from 
arrest  unless  on  probable  cause  supported  by  oath  or  affirma- 
tion. 

In  reference  to  prosecutions  before  justices  of  the  peace,  sec- 
lion  27  of  the  constitution  provides  that  the  proceedings  in  such 
oases  shall  be  regnilated  by  law,  and  section  2121,  Code  1892, 
leads,  that  "on  affidavit  of  the  commission  of  a  crime  of  which 


m 


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4. 


w 


382 


AMERICAN  CRIMINAL  REPORTS. 


!!i 


W 


v\ 


he  has  jurisdiction  lodged  with  a  justice  of  the  peace  he  AmW 
try  and  dispose  of  the  ease  according  to  hiw." 

By  the  general  principles  of  the  common  law  every  accusa- 
tion of  a  crime  against  an  accused  person  must  bo  charged,  di- 
rectly and  positively  stating  the  nature  and  cause  of  the  accusa- 
tion, and  our  Bill  of  Rights  does  not  impair  these  common-law 
jiririeiples.  But  neither  the  constitution  nor  section  2421,  Code 
]SJ)2,  reqxiires  the  affidavit  to  be  sworn  to  by  one  having  per- 
sonal knowledge  of  the  facts  stated  in  it,  nor  do  wo  see  any  rea- 
son for  supplying  such  omission  on  the  part  of  the  legislature. 
The  improbabilities  of  finding  a  person  who  knows  all  the  facta 
of  any  crime,  and  who,  if  knowing  them,  would  be  willing  to 
charge  them  in  such  language  as  imports  undoubted  guilt,  ]>os- 
sibly  induced  the  legislature  not  to  recjuire  personal  knowlediio 
in  the  affiant;  and  that  the  legislature  did  not  intend  tlu!  atii- 
davit  to  be  made  on  personal  knowledge  is  evidenced  by  the  re- 
peated attempts  of  that  body  to  have  misdemeanors  i>rosecutod 
before  justices  of  the  peace  instead  of  before  the  circuit  courts, 
as  by  the  act  which  authorized  grand  juries  to  refer  misde- 
meanors presented  to  them  to  the  proper  justice  of  the  peace 
of  the  county  for  trial. 

A  person  may  be  arrested  only  on  probable  cause,  but  prob- 
able cause  in  law  is  a  charge  of  crime  made  on  oath,  without  re- 
gard to  the  fact  Avhether  the  oath  is  made  on  personal  knowl- 
edge or  upon  information  and  belief  merely.  By  common  law 
certain  officers  made  information  without  oath,  and  such  un- 
sworn information  was  probable  cause  by  that  law.  Here  Car- 
ver was  a  constable,  a  sworn  officer  of  the  law,  and  his  affidavit, 
made  upon  information  and  belief,  charging  Quintini  with  a 
crime,  was  probable  cause,  and  constituted  a  valid  charge  against 
Quintini  for  his  arrest  and  trial  State  v.  Davie,  G2  Wis.  305 ; 
Clark's  Crim.  Pro.,  sec.  230;  Bujham  v.  State,  59  Miss.  52!J; 
Coulter  V.  State,  75  Miss,  356. 

AVe  are  of  the  opinion  that  the  circuit  court  erred  in  quash- 
ing the  affidavit  in  this  cause  and  in  discharging  the  accused. 

Note  (by  H.  C.  G.). — The  fallacy  of  the  foregoing  opinion  Is  appar- 
ent upon  very  slight  inspection.  Probably  the  case  was  well  argued 
below,  but  in  the  Supreme  Court  it  was  an  ex  parte  hearing.  The 
excuse  that  a  constable  could  make  a  complaint  upon  mere  belief,  be- 


STATE  V.  QUINTINL 


3S3 


cause  '  ./y  common  law  certain  officers  made  Information  without  oath, 
etc.,"  doubtless  refers  to  the  old  exceptional  English  practice,  by  which 
the  attorney-general  was  allowed  to  file  information  not  under  oath, 
es  officio,  as  the  representative  of  the  king,  in  cases  of  great  enter- 
fjency  peculiarly  and  directly  affecting  the  royal  prerogatives,  in  the 
court  of  the  King's  Bench:  this  special  privilege  being  conceded  to  the 
Crown  because  the  slightest  delay,  by  following  the  regular  procedure, 
might  be  attended  by  fatal  conseiiuences  to  its  prerogatives.  (See 
notes  to  Johnson  v.  United  States,  supra,  and  4  Blackstone,  ch.  23, 
p.  308.)  This  special  privilege  of  monarchy  has  no  place  or  force  in 
this  country;  and  certainly  it  could  not  be  concluded  that  because, 
imder  such  circumstances,  the  attorney-general  of  England  was  al- 
lowed such  a  dangerous  privilege,  therefore  a  constable  in  this  country 
could  make  a  valid  complaint  upon  mere  opinion  and  belief,  especially 
so  when  it  does  not  appear  that  constables  or  other  officers  in  England 
availed  themselves  of  this  royal  precedent. 

Furthermore,  the  complaint  does  not  charge  an  offense;  for,  while 
the  constable  swears  to  his  belief  that  an  assault  was  made  (not  an 
actual  assault),  he  does  not  aver  his  belief  that  it  was  an  utilawful 
assault. 

The  authorities  and  notes  on  pages  349-380  should  effectually 
dispose  of  doubts  on  this  question;  but  we  may  casually  remark 
that  through  some  erratic  lapse  of  tongue,  reason  or  judicial  imagina- 
tion, this  usually  lucid  and  able  court  stultifies  itself,  as  well  as  over- 
rides the  weight  of  sound  judicial  authority  on  this  branch  of  crim- 
inal pleading.  True,  it  opines  that  the  nature  and  cause  of  every  ac- 
cusation must  be  directly  and  positively  stated.  Then,  lapsing  into  a 
mythical  mood,  It  assumes  that  this  sounding  mandate  can  be  com- 
plied with  by  an  informant  possessing  no  personal  knowledge  of  what 
he  charges.  It  matters  not  whether  the  soleirn  affiant  knew  that  an 
offense  had  in  fact  been  committed.  It  may  have  been  that  a  distress- 
ingly dramatic  dream,  instigated  by  mince  pie  and  too  liberal  potations, 
or  an  over-sensitive  condition  of  a  brain  harassed  by  visions  of  snakes 
or  other  hypnotic  influences,  or  simply  an  old  woman's  tale, — that  any 
or  all  of  these,  spiced  with  a  little  malice,  constituted  tue  inspiring 
source  of  his  direct  and  positive  belief.  Apparently,  in  the  judgment  of 
the  learned  court,  it  was  immaterial  whether  this  imposing  belief 
was  founded  on  fact  or  Action,  provided  it  was  direct  and  positive. 
The  learned  court  might  have  added  weight  to  its  elucidations  by  re- 
minding the  unsuggestive  reader,  that  the  persons  possessing  the  most 
conscientious,  direct  and  positive  impressions  and  beliefs  concerning 
the  shortcomings  of  their  neighbors,  are  found  in  lunatic  asylums. 


H 


P 


'■iM 


8S4 


AMERICAN  CRIMINAL  REPORm 


I!  ■:  '^ 


Barfield  v.  State. 

39  Tex.  Crlm.  Rep.  342—45  S.  W.  Rep.  1015. 

Decided  May  25,  1898. 

Criminal  Complaints:   Insufficiency, 

A  criminal  complaint  Is  Insufficient  which  omits  the  vrord  "did"  in 
charging  the  acts  committed. 

Appeal  from  the  County  Court  of  Crocket  County;  Hon. 
Ch.irlcs  E.  Davidson,  Judge. 

F.  II.  Barfield,  being  convicted,  and  fined  twenty-five  dol- 
lars for  carrying  a  pistol,  appeals.    Eeversed. 

IF.  IF.  WnlUng  and  Mann  Trice,  Asst.  Atty.  Gen.,  for  tlio 
State. 

DAVinso:!^,  J.  Appellant  Avas  convicted  of  carrying  on  and 
about  his  person  a  pistol,  and  appeals. 

^Motion  was  made  to  quash  the  complaint  because  the  word 
"did"  was  omitted  from  the  charging  part  thereof.  The  omis- 
sion of  the  word  "did"  in  charging  the  acts  committed,  in  an 
unbroken  line  of  decisions,  has  been  held  to  invalidate  the  in- 
formation., complaint,  or  indictment,  as  the  case  may  be.  See 
State  V.  Hutchinson,  2G  Tex.  Ill;  Edmondson,  v.  State,  41 
Tex.  49G ;  Ewin-g  v.  State,  1  Tex.  Crim.  App.  3G2 ;  Moore  v. 
State,  7  Tex.  Crim.  App.  42 ;  ]YaR-er  v.  State,  9  Tex.  Crim. 
App.  177;  Jester  v.  State,  20  Tc\.  Crim.  App.  3G9.  The  word 
"did"  is  an  essential  word  in  complaints,  informations,  and  in- 
dictments, Avhere  the  acts  which  constitute  the  offense  are  being 
set  out  or  charged.  Motion  was  made  by  appellant  to  quash  the 
complaint  on  account  of  this  omission,  which  was  overruled  by 
the  court.  This  matter  was  again  urged  by  a  motion  in  arrest 
of  judgment,  and  this  was  also  overruled.  The  motion  to  quash 
diould  have  been  sui^tained,  and,  that  being  overruled,  the  mo- 
tion in  arrest  of  judgment  should  have  been  held  good.  It  was 
unnecessary  for  this  case  to  have  been  brought  to  this  court. 
Had  the  complaint  been  quashed  below,  as  it  ought  to  have 
been,  the  county  attorney  could  have  taken  another,  and  prose- 


STATE  V.  CRUICKSHANK. 


385 


ciitcd  the  case,  without  unncccpsary  delay.    The  judgment  is  re- 
versed and  the  prosecution  ordered  dismissed. 
Reversed  and  dismissed. 

Hurt,  Presiding  Judge,  absent. 


State  v.  Cruicksiiank. 

71  Vt.  94—42  Atl.  Rep.  983. 

Decided  January  26,  1899. 

Crhiinal  Complaints:  Complaint  charging  violation  of  city  ordinance. 

A  complaint  charging  a  violation  of  a  city  ordinance  should  set  out 
the  ordinance,  because  the  court  does  not  take  judicial  notice 
of  it. 

Tlie  case  was  instituted  in  the  City  Court  of  the  City  of  Barre 
by  complaint.  A  demurrer  to  the  complaint  was  overruled  and 
exceptions  taken.    Reversed. 

Richard  A.  Hoar,  for  the  defendant,  cited  State  v.  Soragon, 
40  Vt.  450 ;  Shanfelter  v.  Baltimore,  80  ]\Id.  483 ;  Harl-cr  v. 
Mayor,  17  Wend.  199;  Keeler  v.  Millidge,  4  Zab.  142;  Green 
V.  Indianapolis,  22  Ind.  192;  Porter  v.  \YaHn(j,  C9  I^.  Y.  250; 
1  Dill.  Mun.  Corp.,  sees.  83,  414,  415;  Bishop  on  Stat.  Crimes, 
sees.  404-408 ;  ^\^larton's  Crim.  PI.  &  Pr.  (9th  ed.),  224,  225; 
1  Arch.  Crim.  PI.  &  Pr.  248. 

G.  2\  Swasey  and  John  W.  Gordon,  for  the  State,  contended 
tliat  although  courts  of  general  jurisdiction  do  not  take  judicial 
notice  of  city  ordinances,  a  city  court,  which  bears  the  same  re- 
lation to  them  that  a  State  court  bears  to  the  laws  of  the  State, 
will, — citing  State  v.  Leiber,  11  Iowa,  407 ;  Laporte  v.  Good- 
fellow,  47  Iowa,  572;  1  Dill.  Mun.  Corp.  (4th  ed.),  sec.  413; 
City  of  Salomon  v,  Hughes,  24  Kan.  211 ;  Lanfear  v.  Mestier, 
89  Am.  Dec.  658  and  note ;  Acts  1894,  No.  165,  sec.  77. 

RowELL,  J.    This  complaint  lacks  substance.    It  alleges  that 

the  respondent  did  ride  a  bicycle  along  and  upon  the  sidewalk 

on  a  certain  street  in  the  city  of  Barre,  "in  violation  of  sections 
Vol.  XI— 25 


Sim 


3S6 


AMERICAN  CRIMINAL  REPORTS. 


twenty-five  nnd  twenty-six  of  clinptor  thirteen  of  the  ordiiianoos 
of  said  eity,"  contra  formam  staiuti.  It  should  have  set  out  the 
ordinances,  as  the  court  cannot  take  judicial  notice  of  tliiiii. 
Slate  V.  Soragan,  40  Vt.  450. 

It  i)roperly  concluded  against  the  form  of  the  statute.  Slulc 
V.  Soragan.  Perhaps  it.shoidd  also  have  concluded  against  tlio 
form  of  the  ordinances. 

Judgment  reversed,  demurrer  sustained,  complaint  adjudged 
insufficient,  and  cause  remanded. 

Notes  (by  J.  F.  G.). — While  It  must  be  presumed  that  the  judge  ot 
a  city  court  is  conversant  with  all  of  the  ordinances  of  the  city  in 
whose  court  he  presides,  such  presumption  cannot  be  indulged  in  of 
the  court  to  which  an  appeal  is  taken;  for  it  would  be  unreasonable 
to  say  that  the  Judge  of  a  county  court  of  general  jurisdiction,  or  the 
judges  of  the  Supreme  Court  of  the  State,  would  be  conversant  with  all 
of  the  ordinances  of  the  cities,  towns  and  villages  within  such  county 
or  State;  hence  such  a  record  should  be  made  as  would  fully  set  out 
the  cause  of  action  for  the  information  of  either  of  such  appellant 
tribunals. 

Where  a  civil  suit  is  instituted  by  one  individual  against  another, 
based  on  the  performance  or  non-performance  of  a  city  ordinancp, 
the  ordinance  must  be  pleaded.  With  at  least  equal  force  would  this 
rule  apply  where  the  action  is  brought  to  impose  a  penalty  against  an 
alleged  wrong-doer. 


State  v.  Eastman. 

60  Kan.  557—57  Pac.  Rep.  109. 

Decided  May  6,  1899. 

Embezzlement:  Agent — Criminal  intent  an  essential  ingredient — Omis- 
sion of  intent  in  the  statute. 

Where  a  statute  provided  that  if  any  agent  shall  neglect  or  refuse  to 
deliver  to  his  employer,  on  conditions  specified,  any  moneys, 
books,  etc.,  received  by  virtue  of  his  employment,  etc.,  he  shall 
be  punished,  etc.,  it  was  error  not  to  instruct  the  jury  that  a 
felonious  intent  was  necessary  to  render  the  defendant  guilty, 
notwithstanding  the  statute  was  silent  as  to  the  intent. 

Appeal  from  the  District  Court  of  Lyon  County ;  Hon.  W.  A. 
Randolph,  Judge.    Reversed. 

E.  W.  Cunningham  and  C.  B.  Graves,  for  the  appellant. 
A.  A.  Godard,  Atty.  Gen.,  and  8.  S.  Spencer,  Co.  Atty.,  for 
the  State. 


'■',-^|.J#' 


STATE  V.  EASTMA'^' 


387 


nnros 
It  tlio 
lifiii. 

folate 
it  till) 

i'Oll 


Duster,  C.  J.  This  is  nn  appeil  ivom  a  ju(lf>inont  of  cun- 
viction  for  the  failure  of  the  appollnnt  as  an  agent  to  deliver  to 
liis  ciiiploycr  on  demand  money  which  came  to  the  po9se.ssi( n  of 
llic  iiji'ent  hy  virtue  of  his  agene^'.  The  statute  under  which  tlio 
(diiviction  Avas  had  is  the  last  elause  of  scetion  05,  chapter  100, 
(icucral  Statutes  of  1897  (Gen.  Stat.  1889,  §  2220),  which 
rciuls  as  follows: 

"]f  any  agent  shall  neglect  or  refuse  to  deliver  to  his  eni- 
])l()\er  or  employers,  on  demand,  any  money,  bank  hills,  treas- 
ury ni>tes,  promissory  notes,  evidences  of  debt,  or'other  prop- 
city  which  may  or  shall  have  come  into  his  possession  by  virtue 
tif  such  employment,  office,  or  trust,  after  deducting  his  reason- 
iil)le  or  lawful  fees,  charges  or  commissions  for  his  services,  un- 
less the  same  shall  have  been  lost  by  means  beyond  his  control 
Ix'tVire  he  had  opportunity  to  make  delivery  thereof  to  his  em- 
])]()yer  or  employers,  or  the  employer  or  employers  have  per- 
mitted him  to  use  the  same,  he  shall  upon  conviction  thereof  be 
])nnished  in  the  manner  provided  in  this  section  for  unlawfully 
converting  such  money  or  other  property  to  his  own  use." 

The  principal  claims  of  error  arise  upon  the  instructions  of 
the  court  and  upon  the  coiirt's  refusal  of  defendant's  request 
for  instructions.  It  will  be  obsen'cd  that  the  above  statute  does 
not,  in  its  phraseology,  make  a  criminal  intent  an  ingredient 
of  the  offense  defined.  The  court  in  its  instructions  omitted 
to  charge  the  jury  that  the  possession  of  a  criminal  intent  by 
the  defendant  was  necessary  to  his  conviction,  and  on  the  other 
hand  refused  the  defendant's  request  for  the  following  instruc- 
tion :  "An  essential  element  in  the  crime  charged  in  this  case  is 
a  felonious  intent,  and  before  you  can  convict  the  defendant 
you  must  find  from  the  evidence  that  he  intended  to  convert  to 
his  own  use  the  money  of  the  prosecuting  witness,  and  to  cheat, 
wrong  and  defraud  him."  Other  requests  for  instructions  pre- 
ferred by  the  defendant  applied  the  theory  of  criminal  intent 
as  an  ingredient  of  the  crime  charged  to  the  special  facts  of  the 
case  as  developed  by  the  evidence.    These  were  all  refused. 

The  court  erred  in  refusing  to  instruct  the  jury  as  requested. 
In  The  State  v.  Brown,  38  Kan.  390,  16  Pac.  Kep.  259,  the  de- 
fendant was  prosecuted  for  the  offense  of  being  drunk  in  a 
public  highway.     The  defense  made  was  ignorance  upon  the 


i 


3&8 


AMLIIICAN  CRIMINAL  IlEPOnTS. 


])art  of  the  defeiitliiiit  of  the  intoxiciitiii^  fliii meter  of  the  liquor 
drunk  by  liiin.  Tlio  court  refused  the  (U-fenchiiit's  offer  of  evi- 
dence to  show  his  iguonmee  of  the  intoxientiup;  eluirneter  of  tlic 
liquor,  nnd  inistrueted  the  jury:  ''The  defeudnnt's  ignctrance  nf 
the  intoxicnting  eharaeter  of  the  liijuor  drunk  by  him,  if  lie 
did  drink  any  sueh,  is  no  excuse  for  any  druidienne.Hs  resultiii;^ 
therefrom,  if  any  did  so  result."  These  rulings  were  held  to  he 
erroneous.  The  question  principally  discussed  by  the  court  in 
its  decision  of  the  case  was  whether  ignorance  or  mistake  of 
fact  will  excuse  the  commission  of  an  act  otherwise  criminal.  It 
was  held  that  it  would  do  so.  Some  of  the  re(piests  for  instruc- 
tions preferred  by  the  defendant  in  thi3  case  raise  again  tills 
identical  question.  This  (]uestion,  however,  presents  only  a 
phase  of  the  broader  and  m(»re  general  one — whether  intent  to 
do  wrong  is  a  necessary  element  of  crime.  The  general  rule,  of 
course,  is  that  a  guilty  intent  is  a  necessary  ingredient  of  crime, 
liishop,  Stat.  Crimes,  §§  i;}2,  231,  .'351,  302.  We  do  not  under- 
stand it  to  be  disputed  in  this  case  as  a  g(>ncral  proposition. 
However,  its  application  to  the  case  is  denied  because  of  the 
failure  of  the  statute  to  declare  intent  to  be  an  ingredient  of 
the  offense.  There  arc  some  cases  which  hold  that  unless  nimlo 
so  by  statute  a  guilty  intent  is  not  necessary  to  the  commission 
of  offenses  mala  prohihila;  that  is,  not  inherently  bad,  only  bad 
because  prohibited.  Tiie  offense  charged  against  the  dcfeudiuit 
in  this  case  is  not  bad  merely  because  prohibited,  but  it  is  malum 
in  se — bad  in  itself.  It  is  a  species  of  embezzlement,  and  is 
classified  by  the  stqjute  in  immediate  connection  with  the  com- 
mon-law forms  of  embezzlement,  and  the  punishment  ordained 
for  its  commission  is  the  same  as  the  punishment  for  embezzle- 
ment proper.  We  feel  quite  clear  that  the  principle  upon  which 
The  State  v.  Brown,  supra,  was  decided  applies  in  this  case, 
and  that  the  court  should  have  instructed  as  the  defendant  rc- 
qnested. 

The  judgment  of  conviction  is  therefore  reversed,  with  in- 
struction to  grant  the  defendant  a  new  trial. 


PKOPLE  r.  LAIMC^UE.  ZS'J 

PkoPLK    v.    LAPIQrK. 

120  Cal.  25—52  Pac.  Rep.  40. 

Decided  February  3,  1898. 

EMUEzzr.KMC.NT:  Defemlatit'a  claim  of  right, 

A  broker  was  authorized  to  get  a  certain  price  for  property.  He 
sold  it  for  more,  paying  the  specified  price  to  the  sel!er  and  lieep- 
ing  the  surplus,  under  claim  that  it  was  his  commission,  and 
that  he  was  entitled  thereto  under  the  contract.  He  was  con- 
victed of  embezzling  three  hundred  dollars,  the  money  of  the  pur- 
chaser. Held,  that,  in  view  of  defendant's  claim,  he  was  wrongly 
convicted. 

John  Lnjiiqup,  conviotcd  of  eniltozzloinont  in  tlio  San  Fran- 
cisco Superior  Court,  appeals;  Ed.  A.  Belcher,  Judge.  Re- 
versed. 

Henry  E.  Highlon,  for  appellant. 

W.  F.  Filzfjcrald,  Atty.  Gen.,  and  C.  N.  Post,  Dcpty.  Atty. 
Gen.,  for  respondent. 

The  CoiTKT.  The  defendant  has  hoen  convicted  of  the  crinii' 
of  cnd)ezzlcniont,  and,  taking  the  evidence  in  the  record  most 
strongly  against  him,  it  may  he  suhstantially  summarized  in  a 
few  words:  Mrs.  ^[esplo,  owning  a  lodging  house,  and  desiring 
to  dispose  of  the  same,  autliorized  the  defendant,  in  writing,  to 
sell  it  for  the  sum  of  $1,150.  The  defendant  informed  one 
Aden  that  the  house  could  he  purchased  for  $1,450;  and  Aden, 
desiring  to  purchase,  gave  the  defendant  $1,450  to  pay  to  the 
owner  as  the  purchase  price.  Defendant  paid  the  owner  $1,150 
for  the  house,  and  retained  the  $300  to  himself  as  commissions 
for  his  services.  He  is  now  charged  with  the  embezzlement  of 
this  $300,  the  information  alleging  the  money  to  be  the  prop- 
erty of  Aden,  and  the  defendant  to  bo  Aden's  agent.  AVhat- 
ever  might  be  the  legal  liability  of  defendant  for  this  money  if 
litigation  were  inaugurated  for  its  recovery  in  a  civil  action,  wo 
are  not  here  to  decide.  Indeed,  it  may  be  admitted  that  de- 
fendant was  guilty  of  a  piece  of  sharp  practice.  Yet  sharp  prac- 
tice may  not  constitute  eml)ezzlement,  and  we  think  there  is  no 
endjczzlement  disclosed  by  this  record.  At  the  trial,  defend- 
ant admitted  that  he  had  retained  the  money,  and  claimed  title 


■': 


is'' 


'iff: 


I 


'Ill 


1 ;  s  '■ '. 


id 


i 

u 

ill. 


m  m     'F, 


&  ^  i 


M 


I'f' 


1  .t<^ 


390 


AMERICAN  CRIMINAL  REPORTa 


to  it.  Aiul  upon  the  authority  of  section  511  of  the  Penal  Cuile 
we  deem  l»is  claim  of  title  of  such  a  character  as  to  create  a  good 
defense  to  the  charge  of  embezzlement.  That  section  provides; 
"Upon  any  indictment  for  embezzlement  it  is  a  sufficient  defense 
that  the  property  was  appropriated  openly  and  avowedly,  and 
under  a  claim  of  title  preferred  in  good  faith,  even  though  such 
claim  is  untenable."  Defendant  claims  that  bv  his  contract 
with  Mrs.  Mesplp  he  was  entitled  as  commission  for  his  services 
to  any  sum  in  excess  of  $1,150  that  he  might  obtain  for  the 
property.  He  further  claims  that  Aden  authorized  him  to  pay 
$1,450  for  the  property,  and  that  under  such  circumstances,  if 
he  was  successful  in  securing  the  property  for  a  less  sum,  the 
difference  was  his  profit  upon  the  transaction.  Conceding  these 
claims  to  be  untenable  in  law,  still  we  do  not  think  the  jury  was 
justified  in  saying  by  its  verdict  that  defendant's  claim  of  title 
was  not  made  in  good  faith.  The  judgment  and  order  are  re- 
versed, and  the  cause  remanded. 

Note  (by  H.  C.  G.). — It  may  be  observed  that  in  the  above  case  the 
defendant  was  not  a  servant  nor  an  employee  of  the  prosecuting  wit- 
ness, but  acted  rather  in  the  capacity  of  a  broker  or  independent  agent, 
and  would  not  be  liable  at  common  law,  nor  under  the  original  stat- 
utes, of  embezzlement,  and  would  only  become  liable  under  special 
provisions  of  statute.  See  Commontcealth  v.  Stearns,  2  Met.  343,  one 
of  the  leading  cases,  in  which  it  was  decided  that  an  auctioneer  was 
not  an  agent  within  the  meaning  of  the  statute;  that  he  acted  in  an 
independent  capacity,  agreeing  to  sell  the  goods  and  return  to  tho 
prosecutor  a  stipulated  price;  that  he  had  a  right  to  mix  the  proceeds 
of  the  sales  with  the  proceeds  of  other  sales  and  handle  as  his  own; 
that  there  was  no  conversion  of  the  specific  property  of  the  prosecute; , 
he  having  the  right  to  sell  it;  that  in  making  sales,  he  might  take  in 
bills  larger  than  the  price,  and  return  change  of  his  own  money,  and 
might  deposit  the  money  in  bank  in  his  own  name,  etc.  See  also  Com- 
monwealth V.  Libbey,  11  Met.  64. 

In  looking  for  the  basis  of  modern  adjudications,  we  find  in  the  old 
leading  case  of  Reg.  v.  Norman,  1  C.  &  M.  501,  that  the  court  said  that 
embezzlement  necessarily  involves  secrecy  and  concealment.  That  if 
the  defendant,  instead  of  denying  the  appropriation,  immediately  owns 
it,  alleging  a  right  or  an  excuse,  no  matter  how  unfounded  it  may  turn 
out  to  be,  the  case  does  not  constitute  embezzlement. 

In  Rex  r.  Hodgson,  3  C.  &  P.  422,  defendant,  who  was  a  coach  office 
clerk,  receiving  hundreds  of  items  of  money  per  day  for  passengers 
and  parcels,  and  whose  duty  it  was  to  enter  the  same  in  a  book,  and 
remit  weekly,  failed  to  remit  three  payments;  but  his  book  showed  he 
had  accurately  charged  them  up  against  himself.  Vaughn,  B.,  said: 
"This  is  no  embezzlement;   it  is  only  a  default  of  payment.     If  the 


1 


\i>i'\f ' 


PEOPLE  V.  McBRIDE. 


391 


prisoner  regularly  admits  the  receipt  of  the  money,  the  mere  fact  of 
not  paying  it  over  is  not  a  felony.    It  is  but  a  matter  of  account." 

See  also  note  to  above  case,  referring  to  Rex  v.  Hehh,  where  it  ap- 
peared from  the  books  of  a  clerk  that  he  had  received  more  money 
than  he  paid  out,  in  which  Garrow,  B.,  held  that  this  was  not  enough, 
and  that  it  was  necessary  to  prove  that  some  distinct  act  of  embezzle* 
nient  had  been  committed. 

In  Beaty  v.  State,  82  Ind.  on  page  232,  the  court  approved  of  the  fol- 
lowing instruction  as  correctly  stating  the  law:  "In  such  cases,  an  in- 
tent to  feloniously  approprfate  the  property,  at  the  time  of  the  ap- 
propriation, is  essential;  and  if  the  appropriation  is  made  upon  the  be- 
lief, honestly  entertained  by  the  accused,  that  he  has  lawful  title  or 
right  to  appropriate  it,  the  act  is  not  criminal." 


People  v.  McBeide. 

120  Mich.  166—78  N.  \V.  Rep.  1076. 

Decided  May  9,  1899. 

Emdezzlement:  Admissions  by  a  copartner — Mistake  in  a  draft. 

1.  Where  a  firm  of  lawyers  had  a  note  and  mortgage  for  collection, 

and  one  of  the  members  was  on  trial  for  embezzling  the  money 
collected  thereon,  it  was  held  that  the  statements  of  his  partner 
relating  to  such  transactions,  made  more  than  a  year  after  the 
alleged  collection  was  made,  were  not  a  part  of  the  res  gestw, 
and  were  inadmissible. 

2.  Where  a  draft  was  drawn  payable  to  another  party  by  mistalve, 

but  the  firm  to  which  defendant  belonged  received  the  money,  it 
being  intended  by  the  drawer  that  It  should,  and  he  ordering  the 
drawee  to  pay  it  to  that  firm,  held,  that  the  draft  was  properly 
received  in  evidence. 

Exceptions  before  sentence  from  the  Grand  Rapids  Superior 
Court,  Eurlinganie,  Judge,  by  James  E.  McBride,  who  was 
therein  convicted  of  embezzlement.    Eevcrscd. 

David  E.  Bums  {John  0.  Zahcl,  of  counsel),  for  the  appel- 
lant. 

Horace  M.  Orcn,  Atty.  Gen.,  and  Frank  0.  Bogcrs,  Prose- 
cuting Attorney,  for  the  People. 

This  is  exceptions,  before  sentence,  to  review  proceedings  in 
which  respondent  was  convicted  of  embezzlement.  The  testi- 
mony on  the  part  of  the  People  tended  to  sliow  that  in  August, 


i  =1 


riJ;*« 


392 


AMERICAN  CRIMINAL  REPORTS. 


y^H||9|19VB 

IIMH 

iX  1 

1895,  the  respondent  and  his  son,  Edward  G.  McBride,  were  co- 
partners engaged  in  the  practice  of  Law  at  Grand  Kapids ;  that 
one  Frank  Lewis  during  that  month  left  with  respondent  a  note 
and  nioi'tgage  made  by  one  Lyons,  of  Holland,  Mich.,  for  col- 
lection ;  that  from  time  to  time  he  made  inquiries  aboiit  the  pro^•- 
ress  which  was  being  made,  and  various  reasons  were  assigned 
by  Edward  G.  McBride  why  the  money  had  not  been  received, 
until  in  July,  1897,  he  learned  that  the  money  on  the  mortgatio 
had  been  paid  in  January,  1S9G,  and  the  mortgage  discharged; 
and  that  the  discharge  of  the  mortgage  was  not  executed  by  hiui. 
The  people  called  John  A.  Seymour,  cashier  of  the  Fourth  Xa- 
tional  Bank  of  Grand  Kapids,  who  testified  that  on  the  22d  of 
January,  189G,  he  paid  to  respondent  a  draft  drawn  on  his  bank 
by  the  cashier  of  the  Holland  City  Bank,  payable  to  the  order 
of  the  Fuller  &  Fuller  Company,  and  indorsed  by  jMcBride  & 
McBride;  that  before  paying  tlie  draft  ho  called  up  the  Holland 
City  Bank  for  instructions  to  pay  this  sum  to  McBride  &  ^Mc- 
Bride.  The  cashier  of  tlie  Holland  Citv  Bank  Avas  called,  and 
testified  that  he  drew  the  draft  in  question  in  payment  of  tlio 
money  received  on  collection  of  the  said  note  and  mortgage  n  - 
ceived  from  ]\[cBride  &  McBride  for  collection,  and  by  mistake 
made  it  payable  to  the  Fuller  &  Fuller  Company  (having  just 
previously  drawn  a  draft  in  this  name),  and  on  the  22d  of  Jan- 
uary, when  !Mr.  Seymour  called  him  up,  he  instructed  him  to 
pay  the  draft  to  McBride  &  McBride.  The  prosecution  also 
showed  a  demand  and  refusal  to  pay  it  over  to  the  complaining 
■witness.  The  respondent  denied  having  received  the  money  en 
the  draft,  and  showed  that  the  indorsement  of  the  firm  name  of 
McBride  &  INfcBride  was  not  in  the  handwriting  of  either  mem- 
ber of  the  finn,  and  gave  evidence  tending  to  show  that  the  dis- 
charge was  signed  by  the  eomjilaining  witness.  Respondent 
also  gave  testimony  tending  to  show  that  on  the  22d  of  January, 
189G,  he  was  not  aV)le  to  be  at  the  Fourth  National  Bank,  as  he 
was  confined  to  his  house  by  illness. 

Grant,  C.  J.  (after  stating  the  facts).  The  first  four  assign- 
ments of  error  relate  to  the  admission  of  statements  of  Edward 
G.  McBride  relative  to  the  progress  of  the  collection  made  from 
time  to  time,  and  the  fifth  relates  to  the  admission  in  evidence  of 


PEOPLE  V.  McBRIDE. 


393 


a  statement  by  liim  that  the  firm  had  received  a  draft,  which, 
on  due  inspection,  they  fonnd  did  not  belong  to  them.  Tlie 
ruling  on  the  last  question  was  not  excepted  to,  but  the  court,  on 
making  an  earlier  ruling,  stated  that  all  testimony  of  the  stute- 
nionts  of  Edward  G.  McBridc  was  taken  subject  to  excoptic^n. 
The  character  of" the  testimony  admitted  against  the  objections 
and  exceptions  noted  under  the  first  four  assignments  may  be 
illustrated  by  a  question  put  to  Albert  Lewis,  and  the  answer. 
The  question  was:  "You  may  state  what  Ed.  said  to  you  in 
regard  to  this  note  and  mortgage."  The  witness  answorc<l :  "I 
went  there  several  different  times  to  see  him  about  other  mat- 
ters, and  incidentally  he  would  talk  about  the  Lyons  mortgage. 
He  said  it  was  being  foreclosed ;  and  one  time  he  said  a  cojiy  of 
the  foreclosure  was  being  piepared  by  the  printer,  and  would 
soon  be  through  his  hands,  and  we  could  have  a  copy  of  the 
paper.  I  asked  him  what  paper  it  was  being  printed  in,  and 
lie  said  he  didn't  remember,  but  would  ascertain,  and  send  us 
a  copy.  I  think  that  was  in  April,  1897;  can't  say  definitely." 
As  the  evidence  showed  that  the  mortgage  had  been  discharged 
and  delivered  up  to  Lyons  in  189G,  it  is  apparent  that  this  state- 
ment, if  made  by  respondent,  would  be  very  damaging,  as  it  is 
an  attempt  to  temporize  by  an  itntruth.  The  very  fact  that 
this  testimony  was  important  suggests  the  necessity  of  care  in 
dotermining  its  admissibility.  It  was  mere  hearsay,  unless  it 
he  held  that  it  was  a  part  of  the  res  gcstcc,  or  that  respondent's 
l)artner  was  so  far  his  agent  as  to  bind  him  by  an  aduKssion,  or, 
lather,  to  reflect  upon  him  an  untruthful  equivocation.  It  was 
clearly  not  a  part  of  the  res  gestce.  "The  declarations  of  third 
parties  are  not  admissible  as  part  of  the  res  gestce,  unless  they  in 
some  way  elucidate,  or  tend  to  give  character  to,  the  act  which 
they  accompany,  or  may  claim  a  degree  of  credit  from  the  act 
itself."  Eosc.  Cr.  Ev.  (8th  ed.)  41,  note.  See,  also.  People  v. 
Mead,  50  Mich.  22S,  15  K  W.  Rep.  95.  The  case  of  Simpson, 
V.  Waldby,  03  Mich.  439,  30  ^\  W.  Rep.  199,  cited  by  the  coun- 
sel for  the  People,  is  clearly  distinguishable  fi'om  this.  In  that 
case  it  was  held  that  the  statement  of  a  clerk  in  a  bank  as  to 
whether  a  draft  had  been  paid  was  admissible.  This  was  on 
the  ground  that  the  statement  was  made  in  the  course  of  his 
agency,  and  constituted  a  part  of  the  res  gestce.    It  was  a  civil 


151 


B 


394 


AMERICAN  CRIMINAL  REPORTS. 


case,  and  the  statement  was  one  of  fact,  bj  one  of  whom  the 
witness  was,  by  the  course  of  dealing,  expected  to  inquire.  This 
statement,  under  these  circumstances,  wouhl  bind  the  firm,  fm- 
the  reason  that  he  spoke  for  the  firm.  So,  in  the  case  of  a  psivt- 
neri*lnp,  each  partner  speaks  for  the  firm,  and  binds  all  as  to  its 
civil  obligations.  This  is  on  the  ground  that  each  partner  is 
agent  for  all  partnership  business.  It  is  quite  another  question, 
however,  whether  a  copartner  may  make  an  admission  which 
will  bind  his  copartner  in  a  criminal  proceeding;  and  it  is  still 
a  greater  stretch  of  the  authority  of  an  agent  to  say  that  he  may, 
by  an  untruthful  account  of  what  has  gone  on  in  the  business 
of  his  principal,  subject  that  principal  to  punishment  as  fur  a 
crime.  See  Lambert  v.  People,  G  Abb.  !X.  C.  181.  AVhartou 
states  the  rule  as  follows :  "When  the  relation  of  principal  and 
agent  is  established  in  a  particular  transaction,  the  agent's  a<l- 
missions  may  be  imputed  to  the  principal,  if  his  agency  involves 
the  making  of  such  admissions."  "NVhart.  Cr.  Ev.,  §  69.5.  Tho 
illustrations  given  by  the  author  consist  of  cases  in  which  the 
statement  of  the  agent  was  a  part  of  the  res  gestce.  In  1  Kosc. 
Cr.  Ev.  (8th  ed.)  85,  it  is  said:  *'An  admission  by  an  agent  is 
never  evidence  in  a  criminal,  as  it  is  sometimes  in  civil  cases,  in 
the  sense  in  which  an  admission  by  a  party  himself  is  evideiieo. 
An  admission  bv  a  partv  himself  is  in  all  cases  the  best  evidence 
that  can  be  produced,  and  in  all  cases  supersedes  the  necessity 
of  further  proof;  and  in  civil  cases  the  rule  is  carried  still  fur- 
ther, for  the  admission  of  an  agent,  made  in  the  course  of  his 
employment,  and  in  accordance  with  his  duty,  is  binding  upon 
the  principal,  as  an  admission  made  by  himself.  Hut  this  has 
never  been  extended  to  criminal  cases."  We  think  this  testi- 
mony inadmissible  under  either  of  the  ndes  stated.  The  state- 
ments of  Edward  G.  IMcUride  were  made  fifteen  months  after 
the  commission  of  the  alleged  offense.  The  statement  is  not 
claimed  to  be  a  matter  of  fact,  but  naite  the  contrary, — an  un- 
truthful account  of -the  state  of  the  business,  from  which  the 
jury  would  naturally  infer  an  attempt  to  cover  up  an  offense. 

It  is  next  contended  that  it  Avas  error  to  permit  the  draft 
drawn  by  the  Holland  City  Bank,  payable  to  the  order  of  tho 
Fuller  &  Fuller  Company,  to  be  admitted.  It  is  said  that  tho 
draft  was  either  the  property  of  the  Fuller  &  Fuller  Company, 


PEOPLE  V.  McBRIDE 


395 


or  Avas  a  nullity ;  that  is,  it  was  dead  paper  in  the  hands  of  Me- 
Dride  &  McBride.  We  think  none  of  these  objections  are  ten- 
able. The  testimony  of  the  prosecution  tended  to  show  that  this 
draft  was  in  fact  sent  to  McBride  &  McBride  in  payment  fur 
tlie  Lyons  mortgage,  that  by  mistake  it  was  made  in  the  name  of 
tlio  Fiiller  &  Fuller  Company,  that  it  was  in  fact  presented  for 
payment  by  respondent,  and  that  its  payment  to  him  was  au- 
thorized by  the  drawer,  and  that  the  amount  of  the  draft  was 
in  fact  paid  to  him.  If  the  jury  believed  this  testimony,  it 
would  show,  beyond  cavil,  that  the  respondent  received  this 
money  as  the  proceeds  of  this  collection,  and  as  the  attorney  of 
Lewis.  It  was  entirely  competent  to  trace  the  money  into  re- 
^pdudent's  hands  by  the  methods  pursued.  The  same  considera- 
tidiis  answer  the  respondent's  contention  that  the  court  should 
have  directed  an  acquittal.    The  case  was  a  proper  one  for  the 

j"''y- 

Xone  of  the  other  questions  require  discussion,  as  they  are 
not  likely  to  arise  on  a  new  trial. 

Fur  the  errors  pointed  out,  the  conviction  will  be  set  aside, 
and  a  new  trial  ordered. 

!)[oNTOo:MEnY,  Hooker,  and  Long,  J  J.,  concurred;  Mooke, 
J.,  did  not  sit. 

NoTKS  ON  Embezzlement  (by  H.  C.  G.) — It  is  well  to  bear  in  mind  the 
origin  of  the  law  of  embezzlement  and  the  distinctions  between  it  and 
larceny,  in  order  to  properly  analyze  the  principles  of  the  various  cases. 

Larceny  consisted  in  the  felonious  taking  of  property  from  the  pos- 
session of  the  owner,  and  involved  the  element  of  trespass  as  well  as 
ot'  appropriation.  Where  there  was  no  possessory  right  there  was  no 
laneny.  Where  the  servant  received  property  from  a  third  party  for 
the  master,  without  its  ever  having  been  in  his  possession,  and  con- 
verted it,  larceny  did  not  lie.  Thus,  where  a  banker's  clerk  receive:! 
money  for  his  master  and  appropriated  it,  it  was  held  no  larceny,  be- 
cause the  master  had  never  been  possessed  of  it.  And  where  the  mas- 
ter gave  his  servant  a  note  to  change,  which  he  did,  receiving  other 
money  for  it,  it  was  held  no  larceny;  but  if  he  had  converted  the  orig- 
inal note,  it  would  have  been  larceny,  because  he  received  it  from  the 
possession  of  the  master,  and  the  master's  possession  would  have  con- 
tinued unbroken  up  to  the  conversion. 

But  one  who  was  simply  a  custodian  was  guilty  of  larceny  if  he  ap- 
propriated the  property  intrusted  to  him.  So  a  carter  was  guilty  ot 
larceny  who  drove  off  his  master's  cart  which  had  been  intrusted  to 
him,  and  also  the  drover  who  converted  the  animals  in  his  care,  be- 


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AMERICAN  CRIMINAL  REPORTa 


caus?  the  possession  of  the  master  continued  all  the  time,  and  the  rea- 
Boniiig  was  that  th«y  took  the  property  from  the  possession  of  the 
mapter. 

In  2  Russell  on  Crimes,  382  (9th  ed.),  It  was  said  that  the  "clear 
maxim"  of  the  common  law  was  "that  where  a  party  has  only  the  bare 
charge  or  custody  of  the  goods  of  another,  the  legal  possession  re- 
mains in  the  owner,  and  the  party  may  be  guilty  of  trespass  and  lar- 
ceny in  fraudulently  converting  the  same  to  his  own  use." 

Tt  vr  •  ->  obviate  and  circumvent  this  hiatus  in  the  owner's  or  mas- 
.  ir's  t-  i)ry  right  that  the  statutes  of  embezzlement  were  enacted; 

it  w>*  i.    lance  of  legislative  fiat  to  infuse  into  the  master  the 

riglit  of  pobse.?sion  to  his  property,  the  instant  it  came  into  the  posses- 
sion rf  his  servant  or  agent. 

Mi  Hup  -U  al  "  .^ys,  in  vol.  2,  p.  412  (9th  ed.),  referring  to  the 
English  stuiute:  "li",  thoiofore,  a  man  pay  a  servant  money  for  his 
master,  the  case  wilt  be  within  the  statute,  etc.,"  and  further  on  he 
says:  "and  the  effect  of  this  clause  is  to  make  the  possessioii  of  the 
servant  the  possession  of  the  master,  whevever  any  property  conies 
into  his  possession  within  the  terms  of  this  clause,  so  as  to  make  him 
guilty  of  embezzlement  if  he  converts  it  to  his  own  use." 

Mr.  Whartcr  says  (sec.  1027,  Wharton's  Cr.  L.,  9th  ed.),  "If  the  case 
Is  larceny  at  common  law,  from  the  fact  that  the  money  was  taken 
from  the  prosecutor's  possession,  the  prosecution  for  embezzlement 
fails.  It  is  scarcely  necessary,  in  support  of  this  position,  to  repeat 
the  statement  (from  sec.  1009)  that  the  embezzlement  statutes  were 
passed,  not  to  touch  any  cases  within  the  common-law  range  of  lar- 
ceny, but  to  cover  new  cases  outside  of  that  range.  Hence  that  which 
is  larceny  at  common  law,  from  the  fact  that  the  goods  were  taken 
from  the  owner's  possession,  is  not  embezzlement." 

In  section  1009,  referred  to,  speaking  of  the  cases  of  servants  taking 
the  master's  goods  before  they  have  come  into  the  master's  possession, 
and  of  trustees  and  bailees  converting  the  master's  goods  bona  fide 
received,  he  says:  "Now,  as  neither  of  these  cases  is  larceny  at  com- 
mon law,  the  statutes  of  embezzlement  In  no  way  overlap  the  old 
domain  of  larceny.  They  were  passed  solely  and  exclusively  to  pro- 
vide for  cases  which  larceny  at  common  law  did  not  include.  Hence 
nothing  that  is  larceny  at  common  laio  is  larceny  under  the  embezzle- 
ment statutes;  and  nothing  that  is  larceny  under  the  embezzlement 
statutes  is  larceny  at  common  law.  It  is  important  to  keep  this  in 
mind,  as  from  missing  this  point  some  confusion  in  construing  the 
embezzlement  statutes  has  been  produced." 

In  Kibs  V.  People,  81  111.  599  (COl),  2  Am.  Crlm.  Rep.  114,  the  Su- 
preme Court  of  Illinois  approved  of  the  doctrine  laid  down  in  the  fore- 
going section  of  Mr.  Wharton,  and  made  a  literal  quotation  therefrom. 
In  fact  this  distinction  is  inherent  in  the  subject  and  is  generally 
recognized.  In  Am.  &  Eng.  Ency.  981  (2d  ed.),  it  is  said  that  "Em- 
bezzlement is  generally  regarded  as  a  separate  and  distinct  crime,  and 
i«  so  treated.  Though  there  are  decisions  in  some  States  to  the  con- 
trary, it  is  held  under  most  of  the  statutes  that  the  two  crimes  do  not 
overlap,  but  are  separate  and  distinct,  and  that  if  the  offense  is  one  it 


PEOPLE  V.  McBRIDE. 


597 


cannot  be  the  other;"  and  in  a  note  it  is  further  laid  down  that  "the 
weight  of  authority  is  clearly  in  favor  of  regarding  embezzlement  as  a 
separate  and  distinct  offense,  and  that  this  is  undoubtedly  the  correct 
law  in  America,"  citing  numerous  authorities. 

It  is  because  these  distinctions  are  fundamental  and  inherent  that 
it  becomes  necessary  for  the  pleader  in  drawing  the  Indictment,  in 
adtlition  to  the  charges  of  common  larceny,  where  he  uses  them,  to 
also  aver  the  essential  facts  constituting  the  embezzlement,  viz:  (1) 
that  the  defendant  stood  in  some  fiduciary  relation  to  another,  such 
V.S  servant,  agent,  clerk,  treasurer,  etc.;  (2)  that  by  virtue  of  such  re- 
lation he  received  for  and  on  behalf  of  his  employer,  or  principal, 
moneys  or  other  specified  thing  of  value;  (3)  and  that  he  unlawfully 
(onveited  the  same,  or  a  portion  thereof,  to  his  own  use. 

Tlie  using  of  the  statutory  words,  that  the  defendant  is  "deemed 
guilty  of  larceny,"  or  of  "having  stolen"  the  same,  or  that  he  "did 
steal"  the  property  in  question,  etc.,  does  not  and  should  not  do  away 
with  the  necessity  of  pleading  those  essential  facts  of  the  offense. 
Otherwise  the  liberty  of  the  citizen  would  depend  upon  a  purely  legal 
fiction. 

To  simply  charge  that  the  defendant  feloniously,  etc.,  took,  carried 
away,  and  stole  the  property  of  another,  where  the  real  facts  were 
that,  in  the  course  of  his  employment  as  an  employee  or  agent,  he 
laufuUy  collected  certain  moneys  for  his  employer,  and  then,  after  a 
reasonable  time  in  which  to  turn  them  over,  or  after  demand  upon 
him,  he  unlawfully  kept  and  appropriated  them,  would  constitute  as 
baseless,  and  yet  a  far  more  pernicious  and  deadly  fiction,  than  the 
antiquated  ghostly  spectre  that  haunts  a  declaration  in  trover,  at  whose 
venerable  dictation  the  Intelligent  but  reverential  pleader  meekly  com- 
plains, that  the  plaintiff  casually  lost  the  chattels,  and  that  the  defend- 
ant found  them.  Instead  of  alleging  the  real  facts  of  detention  and  con- 
version. 

In  Commonwealth  v.  Simpson,  9  Met.  138,  It  was  held  that  while  the 
statute  provided  that  the  embezzler  should  be  deemed  to  have  com- 
mitted larceny,  yet  embezzlement  was  distinct  in  its  character  from 
simple  larceny;  that  a  charge  of  simple  larceny  would  not  be  sustained 
by  proof  of  an  embezzlement;  that  the  Indictment  should  allege  suffi- 
cient matter  to  apprise  the  defendant  that  the  charge  was  for  embezzle- 
ment in  its  distinctive  character. 

Public  officers — Public  money — Legal  authority;  property  must  have 
a  legal  status  in  order  to  be  the  subject  of  embezzlement. — A  statute 
punishing  the  embezzlement  of  public  moneys  by  public  officers  applies 
only  to  officers  having  legal  authority  to  receive  and  dispose  of  them. 

A  statute  of  Nebraska  provided  for  certain  fees  to  be  paid  to  the 
auditor  of  the  State  by  insurance  companies.  Subsequently  the  con- 
stitution was  amended  fixing  salaries  for  executive  officers,  and  pro- 
hibiting them  from  receiving  any  fees,  all  fees  to  be  paid  Into  the 
treasury. 

The  auditor  was  indicted  for  embezzling  moneys  of  the  State  of  Ne- 
braska, to  wit:  certain  fees  from  Insurance  companies,  coming  into  his 
hands  by  virtue  of  his  office  as  auditor.    It  was  held  that  the  constitu- 


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398 


AMERICAN  CRIMINAL  REPORTS, 


tional  amendment  abrogated  those  parts  of  the  statutes  In  oonflict  with 
it,  and  that,  In  view  of  that  amendment,  the  auditor  did  not  recoive 
any  fees  In  the  discharge  of  his  duty  nor  by  authority  of  law;  thai  if 
he  did  receive  any  It  was  wholly  outside  of  his  official  duty;  that  such 
fees  were  not  received  for  the  State;  that  the  State  did  not  and  coiiifl 
not  have  any  Interest  in  them;  and  that  as  far  as  embezzlement  was 
concerned,  he  did  not  and  could  not  thus  have  embezzlfed  the  property 
of  the  State.  That  the  court  was  asked  to  liberally  construe  the 
statute  so  as  to  effectuate  its  purposes,  according  to  Its  spirit;  but  that 
meant  to  Impair  the  meaning  and  spirit  of  the  constitution,  which  was 
the  fundamental  law.  Moore  v.  State,  53  Neb.  831  (1898),  74  N.  W. 
Rep.  319. 

A  de  facto  officer  may  he  guilty  of  embezzlement. — The  treasurer  of 
Nebraska  was  convicted  of  embezzling  the  State's  funds,  and  one  of 
the  errors  assigned  was  that  his  bond  was  not  approved  until  six  days 
after  the  statutory  limitation,  and  therefore  should  not  have  been  re- 
ceived in  evidence,  as  he  was  not  de  jure  the  treasurer.  It  was  held 
that  the  prosecution  was  not  for  the  purpose  of  settling  his  right  to 
the  office,  nor  the  validity  of  his  a(ts;  no  person  had  ever  raised  any 
contest  or  question  as  to  his  right  to  exercise  the  functions  of  tlie 
office,  so  that  that  question  was  not  directly  in  Issue  requiring  a  decis- 
ion. That  Inasmuch  as  he  had  exercised  all  of  the  functions  of  the 
office  for  the  full  term  without  objection,  it  was  not  good  policy  to 
allow  him,  after  the  expiration  of  the  term,  when  there  was  no  ques- 
tion to  be  settled,  to  come  in  and  impeach  the  legality  of  his  occupancy 
of  the  office,  when  charged  with  malfeasance  In  office.  That  he  was 
any  way  a  de  facto  treasurer,  and  whether  an  officer  de  jure  or  de 
facto,  he  was  bound  to  honestly  perform  the  duties  of  the  office  he  as- 
sumed.   Bartley  v.  State,  53  Neb.  310,  73  N.  W.  Rep.  744  (1898). 

Public  officers,  etc. — There  must  be  a  duty  imposed  and  charged,  and 
a  felonious  violation  of  that  duty.  A  county  tax  collector  was  con- 
victed of  embezzling  $371.  An  instruction  was,  that  if  defendant  wil- 
fully omltteu  +0  pay  over  the  same,  etc.,  he  was  guilty.  In  a  well  con- 
sidered opinion  this  was  held  to  be  error,  not  only  because  it  was 
based  on  the  wrong  section  of  the  statute,  but  also  erroneous  in  princi- 
ple. The  court  reasoned  that  there  must  be  a  duty,  which  should  be 
charged;  there  must  be  somebody  to  pay  over  to;  and  there  must  be  a 
wilful,  fraudulent  and  felonious  neglect  and  refusal  to  pay  over.  The 
mere  omission  to  pay  over  the  money  was  not  In  Itself  a  crime,  for  the 
defendant  might  retain  It  as  due  him  for  commissions,  or  on  other 
bona  fide  claim.  It  was  the  wrongful  and  felonious  conversion  that 
constituted  the  crime.  People  v.  Westlake,  124  Cal.  452  (1899),  57  Pao. 
Rep.  465. 

Radical  error  incurable. — The  court  held  that  while  the  rule  is  that 
a  defective  Instruction  may  be  cured  by  reading  It  In  connection  with 
other  instructions  that  are  correct,  so  as  to  make  the  whole  harmon- 
ize, this  does  not  apply  to  an  instruction  that  Is  plainly  erroneous  In 
making  a  plain  statement  of  an  incorrect  principle  of  law.    Id. 

Incompetent  evidence. — The  successor  of  the  defendant  said  his  at- 
tention had  been  called  to  a  certain  license  book,  at  settlement,  and 


PEOPLE  V.  McBRIDE. 


309 


was  asked  If  he  had  discovered  anything  unusual  about  the  book, 
over  objections.  The  court  held  that,  while  the  answers  were  not  clear, 
the  evidence  was  improperly  admitted,  because  it  did  not  appear  at 
what  time  such  settlement  was  had,  nor  that  the  book  had  ever  been 
in  the  possession  of  the  defendant,  nor  where  it  had  been  kept,  nor 
that  it  was  in  the  same  condition  as  when  the  witness  received  it; 
that  it  might  have  been  in  the  hands  of  a  dozen  different  persons  after 
its  purported  leaving  the  defendant's  hands.    Id. 

Losing  saw  logs  received  as  taxes  is  not  embezzlement  of  taxes. — 
A  township  treasurer  was  Indicted  for  embezzling  $700  of  taxes,  which 
he  was  charged  to  have  received.  He  offered  to  show  that  he  had  taken 
a  large  number  of  saw  logs  in  lieu  of  taxes,  and  receipted  the  taxes  aa 
paid,  but  that  the  boom  which  held  the  logs  went  out,  and  the  logs 
floated  away;  and  he,  becoming  financially  embarrassed,  was  unable  to 
reimburse  the  township.  This  evidence  was  rejected.  The  Supreme 
Court  said  that  it  should  have  been  admitted.  The  statute  provided 
that  it  was  only  necessary  to  make  a  prima  facie  case — that  the  officer, 
having  received  money  by  virtue  of  his  office,  failed  or  refused  to  pay 
it,  over.  The  court,  however,  said  that  a  prima  facie  case  may  be  re- 
butted. The  defendant  was  charged  with  a  felony,  and  should  have 
been  allowed  to  explain  his  conduct.  But  could  not  the  defendant 
show  that  the  taxes  were  not  in  fact  ever  received?  The  saw  logs  were 
not  taxes.  He  had  no  right  to  receive  them.  Receiving  them  did  not 
discharge  the  taxes,  which  were  still  due;  he  could  not  bind  the  State 
by  receiving  them,  and  however  culpable  his  acts  may  have  been, 
under  the  statute,  and  under  the  state  of  facts  proposed  to  have  been 
shown,  he  was  not  guilty  of  having  embezzled  the  taxes  charged 
against  him.  Taxes  can  be  paid  only  in  money.  To  take  notes  or 
property  for  taxes,  might  endanger  the  existence  of  the  government. 
People  V.  Seeley,  117  Mich.  2(53.  75  N.  W.  Rep.  609  (1898). 

The  assignment  of  an  unmatured  obligation  is  not  the  embezzlement 
of  money. — The  Supreme  Court  of  Connecticut,  In  State  v.  Hanley,  70 
Conn.  265,  39  Atl.  Rep.  148  (1898),  passed  upon  the  question  of  whether 
the  assignment  of  an  order  before  maturity  is  embezzlement  of  the 
money  called  for  In  the  order. 

Defendant  Hanley  kept  a  saloon.  Episcopo  was  interpreter  and  pur- 
chasing agent  for  Italian  laborers,  and  owed  Hanley  ?167  for  goods 
and  wares  received  from  the  saloon.  Abbott  Bros,  owed  Episcopo 
$230,  and  Episcopo  drew  an  order  on  Abbott  Bros,  for  the  $230,  which 
they  accepted  on  December  6th,  payable  December  ISth.  Episcopo  im- 
mediately turned  this  order  over  to  Hanley  to  collect,  and,  after  pay- 
ing himself  the  $167,  to  pay  two  of  his  creditors  $24,  and  the  balance 
return  to  him.  Hanley,  in  his  turn,  assigned  the  order  to  Lowe,  an 
attorney  whom  he  owed,  and  at  maturity  Lowe  collected  the  money 
from  Abbott  Bros.  Hanley  was  charged  with  embezzling,  as  the  agent 
of  Episcopo,  the  sum  of  $63,  being  the  difference  between  the  amount 
of  the  order  and  the  sum  which  Episcopo  owed  him. 

Defendant  denied  that  there  was  an  agreement  of  agency,  and  that 
he  was  an  agent  within  the  meaning  of  the  statute,  and  claimed  also 
that  Episcopo  had  been  paid  the  balance  coming  to  him;  but  the  ques- 


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AMERICAN  CRIMINAL  REPORTS. 


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tion  on  which  the  conviction  was  reversed  was,  whether  the  defendant 
"did  receive  and  take  into  his  possession"  and  fraudulently  appropriate 
the  money  of  Episcopo.  The  court  held  that  until  that  order  became 
due,  Episcopo  owned  no  money  in  the  hands  of  Abbott  Bros,  or  of  the 
defendant.  At  the  time  defendant  assigned  the  order  to  Lowe,  Epis- 
copo had  no  money  in  the  hands  of  Abbott  Bros.,  and  consequently  de- 
fendant could  not  have  appropriated  his  money.  Defendant  was 
charged  with  embezzling  |63  in  money,  whereas  this  order  was  a  ehoso 
in  action,  from  which  money  might  be  realized  in  the  future.  The 
court  said:  "The  apparent  cause  of  the  error  lies  in  the  assumption 
that  before  the  accepted  order  was  due,  Episcopo  owned  'moneys,' 
within  the  meaning  of  the  statute,  in  the  hands  of  Abbott  Brothers; 
and  that  these  moneys,  while  in  the  hands  of  Abbott  Brothers,  were 
in  the  possession  of  agent  Hanley,  and  were  the  subject  of  embezzle- 
ment by  him  as  'moneys'  under  the  statute." 

It  might  be  added,  in  illustration  of  the  principle  of  this  case,  that 
the  "acceptance"  did  not  purport  that  the  acceptors  had  the  money  of 
the  drawer  or  of  any  other  person,  or  a  dollar  of  their  own,  in  posses- 
sion at  that  time,  but  that  they  expected  to  have  money  on  the  day  of 
maturity  from  some  source, — It  might  be  from  legacy,  bequest  or 
gift, — with  which  to  pay  the  order.  See  State  v.  Johnson,  77  Minn. 
267,  reported  in  this  volume. 

Admissihilitp  of  evidence  of  contracts  and  transactions  beticeen  the 
defendant  agent  and  his  employer  was  rather  clearly  discussed  in  the 
case  of  T,.:^er  v.  State,  117  Ala.  42,  23  So.  Rep.  149  (1898).  Defend- 
ant was  Indicted  for  embezzling  $210  from  the  Singer  Mfg.  Co.  He 
claimed  that  if  credits  were  allowed  him  for  old  machines  and  other 
items,  including  office  rent,  he  would  not  be  Indebted  to  the  company; 
and  offered  to  prove  by  the  company's  agent  that  he  refused  to  renew 
the  written  contract  between  them  unless  the  company  would  pay  hiu 
office  rent,  which  the  agent  promised  should  be  done;  also  to  prove 
similar  promises  to  pay  for  repairs  of  wagons.  The  exclusion  of  this 
evidence  was  held  to  be  error. 

Also,  it  was  held  to  be  incompetent  for  an  agent  of  the  company  to 
testify  from  a  written  statement  of  a  purported  settlement  of  accounts 
he  had  with  defendant  when  such  statement  was  not  made  In  the  pres- 
ence of  defendant,  or  at  the  time  of  settlement,  but  subsequently,  from 
notes.  But  it  was  competent  for  the  defendant  to  show  to  the  com- 
pany's agent,  while  testifying,  a  prior  favorable  written  report  to  the 
company,  and  to  ask  him  if  he  did  not  write  the  report. 

In  its  opinion  the  court  said: 

The  court  erred  in  refusing  to  allow  defendant  to  prove  by  the  wit- 
ness Walls  (who  represented  the  Singer  Manufacturing  Company  in 
making  with  defendant  the  two  written  contracts  of  employment)  that 
when  the  second  contract  was  executed  he  (witness)  stated  to  defend- 
ant that  the  company  would  pay  defendant's  office  rent,  as  it  had 
done  theretofore,  and  that  defendant  refused  to  sign  the  second  con- 
tract until  he  made  that  promise.  The  proceeding,  of  course,  was  not 
for  the  enforcement  of  the  contract  between  the  Singer  Company  and 
defendant.    It  was  a  public  prosecution  of  a  charge  of  embezzlement 


PEOPLE  V.  McBRIDE 


401 


made  against  the  defendant  by  the  grand  jury,  wherein  the  Intent  of 
the  defendant,  If  he  appropriated  the  monoys  of  his  principal,  as 
charged,  was  the  most  vital  conBideration.  If  the  appropriation  vt&n 
not  with  the  intent  to  defraud  the  employer,  but  was  honestly  nindo,  to 
pay  the  office  rent,  in  reliance  upon  the  agent's  statement  sought  to  be 
proven,  as  the  defendant  claimed  to  have  been  the  case  as  to  a  part  of 
the  funds  received  by  him,  it  would  be  manifestly  unjust  to  deny  the 
defendant  the  right  to  mal<e  proof  of  the  promise  of  the  agent  as  going 
to  show  his  intent  in  malting  the  appropriation.  The  rule,  that  as  be- 
tween the  parties  to  a  written  contract,  its  terms  cannot  be  added  to, 
altered,  or  varied  by  parol  stipulations  made  at  or  before  its  execution, 
has  no  application  to  the  case.  That  will  apply  when  the  contracting 
parties  come  to  litigate  their  rights  evidenced  by  the  contract. 

The  same  observations  apply  to  the  refusal  to  permit  defendant  to 
make  the  liite  proof  by  his  own  testimony,  and  also  to  his  effort  to 
prove  similar  promises  by  the  agent  Walls,  in  reference  to  payment  by 
the  company  of  repairs  to  the  wagons  used  In  the  business  of  the 
agency. 

It  is  obvious,  however,  that  It  was  not  proper  for  the  State  to  prove 
by  its  witness — an  agent  of  the  Singer  Co. — how  much  commissions 
the  defendant  was  entitled  to  receive  on  collections.  The  written  con- 
tracts regulated  that,  and  were  before  the  court,  and  there  was  no 
question  of  motive  or  Intent,  touching  the  issues  involved  in  the  prose- 
vutlon,  which  that  witness's  views  of  what  the  allowable  commissions 
were,  would  shed  any  light  upon.  It  was  not  proposed  to  be  shown 
even  that  when  the  written  contracts  were  executed,  or  at  any  other 
time,  there  was  any  agreement  between  the  parties  that  the  commis- 
sions should  be  different  from  the  stipulations  of  the  written  contracts, 
if  such  evidence  should  be  regarded  as  material. 

In  the  fall  of  1895,  the  agent  of  the  Singer  Co.  checked  up  the  de- 
fendant's accounts,  resulting  very  favorably  to  the  defendant,  and 
made  his  written  report  to  the  company  accordingly.  When  this  agent 
was  on  the  stand  for  the  State,  testifying  to  the  transactions  of  that 
period,  the  defendant,  presenting  to  the  witness  the  written  report 
itself,  asked  him  if  he  did  not,  after  he  got  through  checking  the  de- 
fendant, write  the  report  to  the  company,  and  the  court  ^'ifused  to 
allow  the  proof,  which  refusal  is  a  matter  of  exception.  It  does  not 
appear  that  this  was  for  the  purpose  of  impeachment  of  the  witness, 
by  contradictory  statements.  It  was  not  for  that  purpose.  So  the  only 
question  is,  was  the  report  admissible  as  res  gestwt  It  sufficiently  ap- 
pears that  it  was  the  agent's  duty  and  office  to  check  up  the  defend- 
ant's accounts,  and  make  written  report  thereof  to  the  company.  The 
defendant  paid  to  the  agent  the  balance  ascertained  to  be  due  on  that 
accounting. 

We  are  of  opinion  the  report  was  a  matter  of  res  gestw,  which  the 
defendant  was  entitled  to  show.  The  settlement  made  was  as  between 
the  parties  even  prima  facie  correct,  and  the  defendant  ought  to  have 
the  benefit  of  it  when  charged  with  embezzlement  of  funds  theretofore 
coming  to  his  hands. 

The  ruling  of  the  court  was  correct,  to  the  effect  that  defendant  was 
VouXI-26 


'1* 


402 


AMERICAN  CRIMINAL  REPORTS. 


h     [l 


It. 


not  entitled  to  commissions  on  money  not  remitted  to  the  rompnny,  or 
acconntod  for  in  a  way  that  was  equivalent  to  legal  payment  thereof 
to  the  company.  If,  however,  coninilsHions  were  retained  by  the  de- 
fendant which  strictly,  by  the  contract,  he  was  not  entitled  to  retain, 
It  will  yet  be  for  the  Jury  to  say  whether  or  not,  under  all  the  i  ir- 
cumstanccs  of  the  case,  the  defendant  acted  with  a  fraudulent  intent 
In  doing  so;  for  It  must  ever  be  borne  in  mind  by  the  jury  that,  beioin 
the  defendant  can  be  adjudged  guilty  of  a  crime  In  this  case,  tiicie 
must  have  been  both  a  wrongful  appropriation  of  money  (not  sowinn 
machines  or  other  property,  but  money)  of  the  Singer  ManufardiiinK 
Co.,  which  came  into  defendant's  hands  as  ngent  of  the  company,  and 
a  fraudulent  intent  in  his  mind,  at  the  time  of  the  appropriation,  lo 
deprive  the  employer — the  company — of  the  money  so  appropriaioil. 
and  the  evidence  must  be  such  as  to  satisfy  the  minds  of  the  Jury  of 
the  fraudulent  intent  beyond  a  reasonable  doubt;  the  burden  of  proof, 
in  the  matter,  being  on  the  State, 

The  court  permitted  the  State  to  introduce  an  accotint  marked  Ex- 
hibit B,  which  its  witness  Forbes  had,  as  agent  of  the  Singer  Company, 
made  out  against  defendant,  purporting  to  show  sundry  items  of  col- 
lections of  money  (thirty  or  more)  which  defendant  had  made  as 
agent  for  the  company,  on  sundry  dates,  running  from  Decemoer,  1801, 
to  January  189fi,  aggregating  $271.05,  with  an  opposite  statemeiii 
selling  and  remitting  commissions"  amounting  to  $55.C2.  The  wit- 
ness testified  that  in  the  spring  of  1890  he  called  on  defendant  for  a 
settlement,  and  that  he  and  defendant,  in  the  presence  of  Mr.  Walls 
and  Mr.  McCumber  (who  were  also  agents  of  the  company),  went  over 
the  accounts  between  defendant  and  the  company,  and  defendant  ad- 
mitted having  collected  and  failed  to  pay  over  the  amounts  which  ai" 
set  out  on  said  Exhibit  U,  He  did  not  say,  however,  that  Exhibit  H 
was  then  in  existence,  or  that  defendant  ever  saw  it  at  any  time,  or 
knew  of  its  existence.  In  fact,  the  witness  further  testified  that  lie 
made  the  memorandum  B,  not  at  the  time  defendant  admitted  the  col- 
lection, etc.,  nor  while  he  was  present,  but  made  it  from  notes,  at  his 
room  at  the  hotel,  about  an  hour  afterwards.  The  bill  of  exceptions 
recites  that  the  exhibit  "was  not  admitted  as  evidence,  but  witness  was 
permitted  to  examine  it  to  refresh  his  recollection,  and  it  might  go  to 
the  Jury  the  better  to  enable  them  to  remember  what  witness  said. " 
It  is  seen  from  the  above  statement  that  witness  does  not  show  that 
the  memorandum  was  made  up  from  notes  taken  by  him  on  the  ex- 
amination of  defendant's  accounts  had  by  him  with  the  defendant. 
Probably  such  was  tJ  j  case,  but  it  does  not  so  appear.  It  could  not 
be  said,  from  his  statement,  when  or  from  what  data  or  evidence  he 
made  the  notes  from  which  the  memorandum  was  made  up.  The  notes 
may  have  been  of  the  purest  hearsay  character,  of  the  truth  of  which 
the  witness  had  no  knowledge,  and  possessing  no  binding  force  on  the 
defendant.  The  witness  did  not  testify  to  the  truth  of  what  the  notes 
showed,  nor  how  he  knew  it.  Under  these  circumstances,  we  think  it 
was  not  proper  to  permit  the  witness  to  refer  to  the  memorandum  to 
refresh  his  recollection." 


h  u.  ■:•••' 


COSOROVE  V.  WINNEY. 


403 


COSGUOVK    V.    "WiNNKY. 

174  U.  S.  64— 19  Sup.  Ct.  Rep.  598,  43  L.  Ed.  897. 

Decided  April  24,  1899. 

Exi'iiADiTiox:  Privilege  from  arrest  during  pendency  of  the  proceeding. 

A  person  who  Is  brought  into  the  United  States  upon  a  warrant 
granted  in  accordance  with  the  extradition  provisions  of  an  liin'r- 
national  treaty  is,  while  under  arrest  or  on  ball,  by  virtue  of  smh 
proceeding,  privileged  from  arrest  for  any  prior  matter;  which 
privilege  Is  not  affected  by  his  going  back  from  whence  he  was 
extradited  and  again  returning  to  the  Unitoil  States. 

Appeal  from  the  District  Court  of  the  Uiiitod  States  for  tlio 
Kiistcrn  District  of  ^lichigan. 

On  Xovcml)cr  7,  18JJ5,  Winney,  a  United  States  marslinl, 
upon  complaint  charging  Cosgrove,  a  resident  of  Canada,  with 
the  larceny  of  a  boat,  caused  a  warrant  to  he  issued  hy  a  police 
justice  of  the  city  of  Detroit  for  his  arrest.  Proceedings  were 
then  had  hy  which  Cosgrove  was  brought  from  Canada  upon  an 
extradition  warrant  issued  hy  the  Canadian  government,  ^fay 
11),  1890;  and  hy  the  police  court  of  Detroit  was  bound  over  to 
the  July  term,  181X3,  of  the  recorder's  court  of  that  city.  IIo 
gave  bail  and  returned  to  Canada ;  but  came  back  to  Detroit  in 
J)eccmber,  1806.  On  Decend)er  3,  1895,  a  capias  was  issued  by 
the  district  court  of  the  V'nitcd  States  for  the  eastern  district 
of  ^lichigan  upon  an  indictment  against  Cosgrove,  the  charge 
being  that  he  obstructed  a  United  States  marshal  in  the  execu- 
tion of  a  writ  of  attachment.  This  warrant  was  not  served  until 
several  months  after  Cosgrove  had  been  admitted  to  hail  in  the 
recorder's  court  of  Detroit.  When  arrested  upon  this  capias, 
Cosgrove  sued  out  a  writ  of  habeas  corpus  from  the  district 
court;  but  upon  being  remanded  in  custody,  he  appealed  to  the 
circuit  court  of  appeals,  where  his  appeal  was  dismissed ;  where- 
upon an  appeal  to  the  Supreme  Court  was  allowed,  and  Cosgrove 
released  on  his  own  recognizance. 

The  district  judge  stated  in  his  opinion  that  it  appeared  "that 
the  property,  for  the  taking  of  which  he  (Cosgrove)  is  charged 
with  larcenv,  was  the  vessel  which,  under  the  indictment  in  this 
court,  he  was  charged  with  having  unlawfully  taken  from  the 
custody  of  the  United  States  marshal,  while  the  same  was  held 


i 


IM^ 


'.  i , 


■•'•?     If 


404 


AMERICAN  CRIMINAL  REPORTS. 


under  a  writ  of  attachment  issued  ironi  the  district  court  in  ad- 
miralty." 

And  also :  "The  only  question  which  arises  under  this  treaty, 
therefore,  is  whether  upon  the  facts  stated  in  the  return,  which 
was  not  traversed,  the  petitioner  has  had  the  opportunity  kc- 
cured  him  by  that  treaty  to  return  to  his  own  country.  If  he 
has  had  such  opportunity,  then  article  3  has  not  been  violated, 
either  in  its  letter  or  spirit,  by  the  arrest  and  detention  of  tlio 
petitioner.  It  is  conceded  that  he  was  delivered  to  the  author- 
ities of  the  State  of  Michigan  in  l^Iay,  1890,  to  stand  his  trial 
upon  the  charge  of  larceny.  He  gave  bail  to  appear  for  trial  iu 
the  recorder's  court  when  required,  and  immediately  returned 
to  Canada.  On  December  10,  189G,  he  voluntarily  appeared 
in  the  State  of  Michigan,  of  his  own  motion,  and  not  upon  the 
order  of  the  recorder's  court,  or  at  the  instance  of  his  bail,  and 
while  in  this  district  was  arrested." 

Mr.  E.  II.  Sellers  and  Mr.  Cass'nis  Ilollenhech,  for  appellant. 
Mr.  Solicitor  General,  for  appellee. 

!Mi{.  Chief  Justice  Fuller  delivered  the  opinion  of  the 
court. 

Article  three  of  the  Extradition  Convention  between  the 
United  States  and  Great  Britain,  promulgated  March  25,  18!»0 
(20  Stat.  1508),  and  section  5275  of  the  Kevised  Statutes,  are 
as  follows : 

"Article  III.  Xo  person  surrendered  by  or  to  either  of  the 
high  contracting  parties  shall  be  triable  or  be  tried  for  any 
crime  or  offense,  committed  prior  to  his  extradition,  other  than 
the  offense  for  which  he  was  surrendered,  until  he  shall  have 
had  an  opportunity  of  returning  to  the  country  from  which  he 
was  surrendered." 

"Sec.  5275.  Whenever  any  person  is  delivered  by  any  foreign 
government  to  an  agep.c  of  the  United  States,  for  the  purpose  of 
being  brought  within  the  United  States  and  tried  for  any  crime 
of  which  he  is  duly  accused,  the  President  shall  have  power  to 
take  all  necessary  measures  for  the  transportation  and  safe-keep- 
ing of  such  accused  person,  and  for  his  security  against  lawless 
violence,  until  the  final  conclusion  of  his  trial  and  for  the  crimes 
or  offenses  specified  in  the  warrant  of  extradition,  and  until  his 


COSGROVE  V.  WINNEY. 


405 


?atv, 


are 


final  discharge  from  custody  or  imprisonment  for  or  on  account 
of  such  crimes  or  offenses,  and  for  a  reasonable  time  thereafter, 
and  may  employ  such  portion  of  the  land  and  naval  forces  of 
the  United  States,  or  of  the  militia  thereof,  as  may  be  necessary 
for  the  safe-keeping  and  protection  of  the  accused." 

Cosgrove  was  extradited  under  the  treaty,  and  entitled  to  all 
the  immunities  accorded  to  a  person  so  situated;  and  it  is  ad- 
mitted that  the  offense  for  which  he  was  indicted  in  the  district 
court  was  committed  prior  to  his  extradition,  and  was  not  ex- 
traditable. But  it  is  insisted  that  although  he  could  not  be  ex- 
tradited for  one  offense  and  tried  for  another,  without  being 
afforded  the  opportunity  to  return  to  Canada,  yet  as,  after  he 
had  given  bail,  he  did  so  return,  his  subsequent  presence  in  the 
United  States  was  voluntary  and  not  enforced,  and  therefore  he 
had  lost  the  protection  of  the  treaty  and  rendered  himself  sub- 
ject to  ari'est  on  the  capias  and  to  trial  in  the  district  court  for 
an  offense  other  than  that  on  which  he  was  surrendered;  and 
this  although  the  prosecution  in  the  State  court  was  still  pending 
and  undetermined,  and  Cosgrove  had  not  been  released  or  dis- 
cliarged  therefrom. 

Conceding  that,  if  Cosgrove  had  remained  in  the  State  of 
Michigan  and  witliin  reach  of  his  bail,  he  would  have  been  ex- 
empt, the  argniment  is  that,  as  ho  did  not  continuously  so  re- 
main, and,  during  his  absence  in  Canada,  his  siireties  could  not 
have  followed  him  there  and  compelled  his  return,  if  his  appear- 
ance happened  to  be  required  according  to  the  exigency  of  the 
bond,  which  the  facts  stated  show  that  it  was  not,  it  follows  that 
when  he  actually  did  come  back  to  Michigan  he  had  lost  his  ex- 
emption. 

But  we  cannnot  concur  in  this  view.  The  treaty  and  statute 
secured  to  Cosgrove  a  reasonable  time  to  return  to  the  country 
from  which  he  was  surrendered,  after  his  discharge  from  cus- 
tody or  imprisonment  for  or  on  account  of  the  offense  for  which 
he  had  been  extradited,  and  at  the  time  of  this  arrest  he  hat^ 
not  been  so  discharged  by  reason  of  acquittal ;  or  conviction  and 
compliance  with  sentence ;  or  the  termination  of  the  State  pro<?e- 
cution  in  any  way.  United  States  v.  Eauscher,  119  U.  S.  407, 
433. 

The  mere  fact  that  he  went  to  Canada  did  not  in  itself  put 


406 


AMERICAN  CRIMINAL  REPORTS. 


m':l 


an  end  to  the  prosecution  or  to  the  custody  in  which  he  was  hchl 
by  his  bail,  or  even  authorize  the  bail  to  be  forfeited,  and  when 
he  re-entered  Michigan  he  Avas  as  much  subject  to  the  compul- 
sion of  his  sureties  as  if  he  had  not  been  absent. 

In  Taylor  v.  Taintor,  10  Wall.  366,  371,  Mr.  Justice  Sw.".yn(', 
speaking  for  the  court,  said:  "When  bail  is  given,  the  principiil 
is  regarded  as  delivered  to  .the  custody  cf  his  sureties.  Tlieir 
dominion  is  a  continuance  of  the  original  imprisonment.  When- 
ever they  choose  to  do  so,  they  may  seize  him  and  deliver  him 
up  in  their  discharge ;  and  if  that  cannot  be  done  at  once,  they 
may  imprison  him  until  it  can  be  done.  They  may  exercise 
their  rights  in  person  or  by  agent.  They  may  pursue  him  into 
another  State;  may  arrest  him  on  the  Sabbath;  and,  if  neces- 
sary, may  break  and  enter  his  hoiise  for  that  purpose.  The 
seizure  is  not  made  by  virtue  of  new  process.  None  is  needed. 
It  is  likened  to  the  rearrest  by  the  sheriff  of  an  escaping  pris- 
onei'.  In  6  Modem,  231,  it  is  said:  'The  bail  have  their  i)rin- 
oipal  on  a  string,  and  may  pull  the  string  whenever  they  please, 
and  render  him  in  their  discharge.'  The  rights  of  the  bail  in 
civil  and  criminal  cases  are  the  same.  They  may  do\ibtless  per- 
mit him  to  go  beyond  the  limits  of  the  State  within  which  he  is 
to  answer,  but  it  is  unwise  and  imprudent  to  do  so;  and  if  any 
evil  ensue,  they  must  bear  the  burden  of  the  consequences,  ami 
cannot  cast  them  upon  the  obligee." 

We  think  the  conclusion  cannot  be  maintained  on  this  record 
that,  because  of  Cosgrove's  temporary  absence,  he  had  waived  or 
lost  an  exemption  v/hich  protected  him  while  he  was  siibject  to 
the  State  authorities  to  answer  for  the  offense  for  which  he  had 
been  extradited. 

The  case  is  a  peculiar  one.  The  marshal  initiated* the  prose- 
cution in  the  State  courts,  and  some  weeks  thereafter  the  in- 
dictment Avas  found  in  the  district  court  for  the  same  act  on 
Avhich  the  charge  in  the  State  courts  was  based.  The  offenses, 
indeed,  were  different,  and  different  penalties  were  attached  to 
ihem.  But  it  is  immaterial  that  Cosgrove  might  have  been  liable 
to  be  prosecuted  for  both,  as  that  is  not  the  question  here,  which 
is  whether  he  could  be  arrested  on  process  from  the  district  court 
before  the  prior  proceeding  had  terminated  and  he  had  had  op- 
l>ortunity  to  return  to  the  country  from  which  he  had  been 


PEOPLE  V.  WEIR 


407 


taken.  Or,  rather,  whether  the  fact  of  his  going  to  Canada 
jicnding  the  Sta+e  proceedings  deprived  him  of  the  immunity 
he  possessed  by  reason  of  his  extradition,  so  that  he. could  not 
claim  it  though  the  jurisdiction  of  the  State  courts  had  not  been 
exhausted ;  he  had  come  back  to  Michigan ;  and  he  had  had  no 
opportunity  to  return  to  Canada  after  final  discharge  from  the 
State  prosecution. 

We  are  of  opinion  that,  under  the  circumstances,  Cosgrove 
retained  the  right  to  have  the  offense  for  which  he  was  extradited 
disposed  of  and  then  to  depart  in  peace;  and  that  this  arrest 
was  in  abuse  of  the  high  process  under  which  he  was  originally 
brought  into  the  United  States,  and  cannot  be  sustained. 

Final  order  reversed  and  cause  remanded  with  a  direction  to 
discharge  petitioner. 


People  v.  Weir. 

120  Cal.  279—52  Pac.  Rep.  656. 

Decided  March  15,  1898. 

False  Pretenses:  Obtaining  money  from  fiancee. 

Where  a  man  obtained  money  from  a  young  woman  to  whom  ne  was 
engaged  to  be  married  upon  specific  false  statements  as  to  alleged 
facts,  held,  that  the  direct  and  moving  cause  that  induced  her  to 
give  her  money  was  the  false  representations,  and  not  the  exist- 
ence of  the  engagement  to  marry;  that  the  latter  only  put  her  In 
a  frame  of  mind  to  give  credence  to  the  former. 

Appeal  from  the  San  Francisco  Superior  Court;  Hon.  Will- 
iam  T.  Wallace,  Judge.    Affirmed. 

Fermi,  Wilson  tC  Terry,  for  appellant, 
ir.  F.  Fitzgerald,  Atty.  Gen,,  and  Charles  11.  Jaclson,  for 
respondent. 

Garoutte,  J.  The  appellant  has  been  convicted  of  the  crime 
of  obtaining  money  imder  false  pretenses.  The  facts  may  be 
substantially  stated  in  a  few  words.  Appellant  was  engaged  to 
be  married  to  a  young  woman.  He  stated  to  her  that  he  had  the 
opportunity  of  securing  en^ployment  Avith  the  real  estate  firm  of 
]Jovee,  Toy  &  Co.,  and  that  as  a  cou'lition  precedent  to  such 
employment  it  was  necessary  for  him  to  deposit  with  such  firm 
one  thousand  dollars  in  money  as  security.     lie  further  stated 


408 


AMERICAN  CRIMINAL  REPORTa 


i! 


iL 


m 


that  he  nodded  two  hundred  dollars  to  make  up  that  amount, 
and  aflkod  her  to  advance  it  to  him.  She  did  so.  His  declara- 
tion as  to  the  employment  were  false,  and  likewise  his  declara- 
tions as  to  the  need  of  the  one  thousand  dollars.  After  obtaiii- 
inff  possession  of  the  money  the  young  woman  no  longer  enjoyp(l 
liis  society,  for  she  never  saw  him  any  more.  The  forogninrf 
facts  are  a  brief  summary  of  the  evidence  in  the  part  of  tlio 
prosecution;  at  least  it  may  he  said  that  the  jury,  under  the  evi- 
dence introduced,  was  justified  in  declaring  the  existence  nf 
such  a  state  of  facts.  And  this  state  of  facts  is  ample  to  sup- 
port the  verdict. 

It  is  contended  upon  the  part  of  the  defendant  that  tlip 
woman  loaned  him  the  money  because  of  the  engagement  exist- 
ing between  them,  and  not  by  reason  of  his  reprcscntati<ins  \o 
her  as  to  the  employment  and  necessity  for  a  cash  deposit.  This 
point  is  extremely  technical — indeed,  so  technical  as  to  ])osf;('<s 
little  merit.  The  fact  that  the  prosecuting  witness  would  imt 
liave  advanced  the  money  to  a  stranger  upon  the  representations 
made,  or  even  to  a  mere  friend,  furnish  no  light  upon  the  issu;\ 
Wliile  the  fact  of  the  existence  of  the  engagement  was  the  reuuitc 
cause  of  the  loss  of  the  money  to  the  prosecuting  witness,  th(>  di- 
rect moving  cause  was  the  false  representations.  The  engaiiv- 
uient  sim))ly  acted  as  a  leaven  in  placing  her  mind  in  that  plastic 
condition  in  which  it  would  most  readily  absorb  the  false  reinc- 
sentations  made  by  defendant.  Defendant  also  stated  to  tlui 
prosecuting  witness  that,  if  she  would  advance  the  two  huntlrcl 
dollars,  "they  then  could  be  married  right  away."  It  is  now  in- 
sisted that  such  statement  was  the  superinducing  cause  which 
actuated  the  girl's  mind  in  parting  with  the  money.  Again,  we 
deem  this  a  technicality  of  small  dimensions,  and  the  sngucs- 
tions  already  made  meet  the  contention.  Under  any  circum- 
stances these  questions  were  matters  of  fact  for  the  jury  to  de- 
cide. We  have  examined  the  other  matters  discussed  by  coun- 
sel, and  have  arrived  at  the  conclusion  that  there  is  no  merit  in 
the  appeal. 

Judgment  and  order  affirmed. 

Van  Flkkt,  J.,  and  IIakrison,  J.,  concurred. 
Hearing  in  bank  denied. 


B  « 


STATE  V.  RENICK.  409 

State  v.  Renick. 

33  Oreg.  584—56  Pac.  Rep.  275. 

Decided  February  28,  1898. 

Fal.se  Pretenses:   Cheating  by  a  false  token — Distinctions. 

1.  A  man  is  not  a  false  token;  nor  does  he  render  liimself  one  by  as- 

suming a  fictitious  name. 

2,  A  woman  giving  money  to  a  man  under  promise  of  marriage,  who 

assumes  a  fictitious  name  and  claims  to  be  single  while  be  has 
a  wife  living,  does  not  part  with  her  money  by  means  of  a  false 
token. 

Appeal  from  Multnomah  County  (Circuit  Court). 

George  Kenick,  indicted  for  obtaining  money  by  means  of  a 
false  token,  etc.,  demurred.  Demurrer  sustained,  and  the  State 
iippeals  on  a  question  of  law.    Iluling  below  affirmed. 

C.  M.  Idleman,  Atty.  Gen.,  Chas.  F.  Lord  and  E.  E.  Sewall, 
for  the  State. 

Stott,  Boise  &  Stout,  for  the  respondent  (Oral  argument  by 
(/.  C.  Stout.) 

WoLVERTON,  C.  J.  The  indictment  in  this  case  charges,  in 
Ptibstance,  that  the  defendant,  George  Renick,  did  on  the  tenth 
day  of  Xovembor,  1890,  in  Multnomah  county,  Oregon,  Avil- 
fully  and  feloniously,  with  intent  to  defraud,  by  means  of  a 
t'iM'tain  false  token,  to  wit,  himself,  the  said  George  Renick, 
falsely  and  fraudulently  present  himself,  the  said  George  Ren- 
ick, and  represent  and  pretend  to  one  Carrie  Meyer,  an  unmar- 
ried woman,  that  he,  the  said  George  Renick,  was  one  Charles 
Smith,  that  he  was  unmarried,  and  competent  and  in  a  position 
to  lawfully  contract  marriage  with  her,  whereas,  in  truth  and 
in  fact,  the  said  George  Renick  was  not  Charles  Smith,  and  was 
not  then  unmarried,  but  had  a  lawful  wife  then  living ;  by  means 
of  which  false  token,  fraudulent  pretense,  and  false  representa- 
tions, coupled  with  a  promise  to  marry  her,  the  said  Carrie 
]\royer,  he,  the  said  George  Renick,  did  then  and  there  obtain  of 
Carrie  Meyers  divers  gold  coins,  of  the  value  of  $190.  A  de- 
murrer to  this  indictment  was  sustained,  and  the  State  appeals. 
It  is  claimed  that  the  money  was  obtained  by  false  pretenses, 


% 

4 


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ill: 


f.VgJK 


mi  I 


410 


AMERICAN  CRIMINAL  REPORTa 


\f-^?> 


tbrougli  and  by  the  use  of  a  false  token,  and  that  the  use  by  de- 
fendant of  himself  as  such  false  token  was  sufficient  in  law  to 
constitute  the  offense.  This  presents  the  only  question  to  be  do- 
terinined. 

There  was  a  species  of  cheat  or  fraud  at  common  law  wliicli 
was  effectuated  through  the  \ise  of  deceitful  or  illegal  synihnls 
or  tokens,  such  as  were  calculated  to  affect  the  public  at  hirjix", 
and  against  which  common  prudence  could  not  have  guardi'd. 
It  was  not  sufficient  upon  which  to  found  the  offense  if  a  iiiore 
privy  token  was  employed, — a  counterfeit  letter  in  another  i)('v- 
son's  name,  or  a  private  check  upon  a  bank  in  which  the  drawer 
had  no  funds  (Lara's  Case,  2  Leach,  647,  652),  and  the  like, — 
not  having  the  semblance  of  public  authenticity  or  purport! ii{^ 
to  be  of  public  consequence,  such  as  spurious  money  of  the  realm 
or  bank  notes  circulating  throughout  the  community  as  a  me- 
dium of  exchange.  But  by  St.  33  lien.  VIII.,  ch.  1,  the  obtain- 
ing goods  by  means  of  false  privy  tokens,  counterfeit  letters, 
etc.,  is  expressly  made  an  indictable  offense,  and  this,  ^Ir. 
Bishop  says,  has  now  become  common  law  with  us.  1  Bisliop, 
Cr.  Law,  §  571.  But  as  it  regards  privy  tokens  at  least,  tliis 
statute  has  always  been  considered  as  creating  a  new  offense. 
People  V.  Slonc,  9  Wend.  18.  Another  species  of  cheat  or  fraud 
at  common  law  Avas  accomplished  through  the  false  personation 
of  another.  2  Russell,  Crimes,  10,  11.  Perhaps  the  commonly 
accepted  definition  of  a  "common-law  cheat"  is  that  "it  is  a 
fraud  wrought  by  some  false  symbol  or  token,  of  a  nature 
against  which  common  prudence  cannot  guard,  to  the  injury  of 
one  in  any  pecuniary  interest."  1  Bishop,  Gr.  Law,  §  571;  2 
Wharton,  Cr.  Law,  §  1116;  5  Am.  &  Eng.  Enc.  Law  (2d  ed.), 
1025.  But  Russell,  in  his  work  on  Crimes,  gives  it  a  wider  sig- 
nification, and  defines  it  as  "tlie  fraudulent  obtaining  the  prop- 
erty of  another  by  any  deceitful  and  illegal  practice  or  token 
(short  of  felony)  which  affects  or  may  affect  the  public."  2 
Russell,  Crimes,  613.  See,  also,  1  Bouvier,  Law  Diet.  p.  317. 
Under  this  definition,  the  cheat  up^d  not  necessarily  be  accom- 
plished through  the  use  of  a  symbol  or  token,  and  cases  are  cited 
by  the  learned  author,  in  connection  with  the  definition,  whieli 
would  seem  to  support  his  enlarged  concejjtion  of  it.  Some 
eases  are  cited  by  Bishop,  as  Hex  v.  Jones,  1  Leach,  174,  wherein 


STATE  V.  RENICK. 


411 


an  apprentice  got  himself  enlisted  as  a  soldier,  and  thus  obtained 
a  bounty,  by  professing  that  there  was  no  impediment;  and 
Jicx  V.  Hanson,  Sayer,  229,  wherein  a  woman  was  indicted  for 
getting  board  and  lodging  by  falsely  affirming  herself  to  be 
siiii-le  and  of  the  name  of  Fuller,  Avhen  she  was  married  and  of 
the  name  of  Hanson.  And  it  is  supposed  by  the  author  that  the 
bf)V  in  the  one  case  and  the  woman  in  the  other  were  tokens,  and 
ihorofore  that  those  cases  were  disposed  of  upon  that  ground 
(piilv.  But,  t\'hen  they  are  looked  into,  it  does  not  appear  that 
tlic  decisions  were  based  upon  that  theory.  Indeed,  they  are  so 
iiieiigcrly  reported  that  it  is  difficult  to  determine  what  was  the 
c])eeific  ground  of  their  disposal.  The  broader  definition  of 
Kussell  and  Bouvier  of  a  "cheat"  at  common  law  would  un- 
doubtedly include  the  offense,  as  it  was  in  either  instance  a  de- 
ceitful practice.  In  the  case  of  the  boy,  it  was  a  wilful  mis- 
re])resentation  touching  his  age  and  apprenticeship;  and  of  the 
Wdiiian,  a  wrongful  personation  of  another. 

Tliere  is  an  old  case  of  Beg.  v.  Macmiy,  G  !Mod.  301,  wherein 
it  was  charged  that  Macarty,  one  of  the  defendants,  falsely 
represented  himself  to  be  a  broker,  and  Fordenborough,  the 
other  of  such  defendants  falsely  pretended  to  be  a  merchant,  of 
London,  and  as  such  traded  in  Portugal  wines,  and  that,  through 
such  pretensions  and  representations,  they  induced  one  Chown 
to  barter  a  quantity  of  hats  for  a  quantity  of  a  spurious  and  un- 
wholesome wine,  represented  to  be  good  and  wholesome  Portiigal 
w  inc.  In  deciding  the  case  iipon  exce])tions  to  the  indictment, 
Holt,  C.  J.,  says:  "The  crime  is  not  the  selling  one  thing  for 
{uiotlier,  but  here  is  a  false  token,  the  one  pretending  to  be  a 
broker  and  the  other  a  merchant,  and  a  combination  to  cheat," 
Ucx  V.  Hovers,  Sayer,  200,  is  another  old  case  wherein  the  dc- 
fciuhint  was  indicted  for  falsely  assximing  to  be  a  merchant,  and 
l)ro(lucing  divers  coimterfeit  commissions  purporting  to  be  from 
►Spain,  and  thereby  induced  another  person  to  extend  him  credit. 
T'pon  a  rule  to  show  cause  why  judgment  should  not  be  arrested, 
Ryder,  C.  J.,  said:  "The  present  case  is  much  stronger  than 
tliat  of  Reg.  v.  Macarty,  inasmuch  as  the  defendant,  besides  pre- 
tending to  be  a  merchant,  did  produce  several  paper  writings, 
which  he  affirmed  to  be  letters  containing  commissions  to  him 
as  merchant."    Mr.  Russell  pertinently  remarks,  of  the  first  of 


u-i 


i\ 


412 


AMERICAN  CRIMINAL  REPORTS. 


:'  li.. 


■■''■'I'l 


these  cases,  that  the  true  groimcl  of  the  judgment  was  that  it  wan 
a  case  of  conspiracy,  and  this  was  another  species  of  cheat  at 
common  law ;  and  of  the  second,  that  the  cheat  was  effected  hy 
means  of  a  forgery,  which  was  in  itself  a  suhstantive  offoiisc, 
indictable  at  common  law.  The  forgery,  if  successful,  was  in- 
dictable as  a  common-law  cheat.  The  broader  definition  alluded 
to  would  include  these  offenses  also,  without  going  to  the  extent 
of  holding  that  the  defendants  themselves  were  tokens. 

But,  whatever  may  be  the  nile  and  definition  touching  tlio 
common-law  cheat,  the  statutes  of  England  early  began  to  dis- 
tinguish between  the  different  species  of  cheat,  and  to  carve  out 
a  distinct  offense  for  obtaining  money  or  property  by  falsely 
•personating  another.  Such  an  offense  has  been  widely  adopted 
in  the  American  States,  and  o\ir  own  statute  has  made  the  act 
punishable.  Hill's  Ann.  Laws,  §  1776.  The  statute  has  also 
made  it  an  offense  for  any  person  to  obtain,  or  attempt  to  ob- 
tain, with  intent  to  defraud,  any  money  or  property  whatever, 
by  any  false  pretense,  or  by  any  privy  or  false  token.  Hill's 
Ann.  Laws,  §  1777.  The  evidentiary  matter  necessary  to  sup- 
poi't  a  charge  under  the  latter  section  must  consist  of  a  false 
token  or  writing  accompanying  the  pretense.  Hill's  Ann.  Laws, 
§  1372.  Construing  the  two  sections  together,  the  crime  known 
to  our  statute  is  much  the  same  as  that  constituted  by  33  Hon. 
VIII.,  which  extended  the  common-law  cheat  so  as  to  include 
one  accomplished  through  the  use  of  a  false  privy  token  or  coun- 
terfeit letter.  The  two  offenses  are  defined,  however,  and  inatie 
separate  and  distinct,  by  statute,  so  that  there  need  be  no  longer 
a  question,  as  under  the  common  law,  as  to  whether,  in  the 
false  personation  of  another,  the  person  engaging  in  the  deceit 
is  himself  a  false  token.  It  is  made  a  crime  to  so  act,  and  a 
case  coming  fairly  within  the  statute,  it  is  thought,  could  no*- 
be  prosecuted  under  the  section  for  obtaining  money  under  false 
pretenses.  The  case  at  bar,  however,  is  probably  not  a  false  per- 
sonation, by  reason  of  the  fact  that  the  defendant  did  not  as- 
sume to  represent  a  real  personage,  but  only  made  use  of  a  fic- 
titious name,  having  no  application  to  any  one. 

But  it  is  contended  that  he  is  guilty  of  a  false  pretense  by 
the  use  of  himself  as  a  token.  If  that  were  so,  he  must  be  re- 
garded as  a  privy  token,  as  his  personation  was  not  calculated, 


STATE  V.  RENICK. 


413 


nor  was  it  his  purpose,  to  deceive  or  impose  upon  the  public  in 
general ;  the  fraud  being  an  imposition  upon  an  individual  only, 
and  not  extending  to  the  injury  of  the  public,  in  the  sense  of  a 
public  cheat.  In  the  Jones  Case,  1  Leach,  174,  the  personation 
was  of  a  class  capable  of  enlistment  in  the  public  service,  and 
the  act  operated  as  a  fraud  in  the  procurement  of  public  moneys. 
So,  in  liex  v.  Hanson.,  Sayer,  229,  the  woman  obtained  general 
credit  by  pretending  to  be  unmarried,  thus  affecting  the  public. 
]\Ir.  Whaiion  puts  a  case:  "If  a  pretender  (e.  g.,  Perkin  War- 
licck  or  the  Tichborne  claimant)  palm  himself  off  on  a  com- 
iHunity  as  another  person,  and,  under  the  guise  of  his  assumed 
cliaractcr,  obtain  credit  from  the  public  at  large,  he  is  indictable 
as  a  cheat,  assuming  that  he  imposes  upon  persons  who  have  no 
notice  that  his  claims  are  disputed,  and  also  addresses  his  im- 
j)osture  to  the  public  at  large.  The  offense  is  aimed  at  the  pub- 
lic generally,  and  is,  supposing  there  is  no  notice  to  put  the 
others  on  their  guard,  aimed  as  much  at  the  careful  as  the  care- 
less. Hence  it  is  a  cheat  at  common  law."  *'But  suppose,"  says 
the  learned  author,  a  little  further  on,  "the  pretender  goes  sim- 
jily  to  an  individual,  and  with  that  individual  uses  his  pretended 
character  as  a  basis  for  getting  money,  while  there  is  nothing 
about  the  pretender's  appearance  or  general  reputation  to  sus- 
tain such  character.  In  such  case,  there  being  no  latency,  since 
there  is  a  direct  subject  tendered  to  the  prosecutor  on  which  to 
make  inquiry,  and  the  fraud  being  pointed  at  a  single  indi- 
vidual, it  is  not  a  cheat  at  common  laAV."  2  Wharton,  Cr.  Law, 
^  1124.  Thus  it  characterized  the  distinguishing  feature  be- 
tween a  token  of  public  import  and  a  privy  token  or  symbol,  and 
the  effect  of  their  use  in  the  consummation  of  the  common-law 
cheat,  and  it  serves  as  an  admirable  aid  in  determining  the 
nature  of  the  supposed  token  used  in  the  consummation  of  the 
offense  charged.  If,  therefore,  in  the  case  at  bar,  the  supposed 
token  is  a  token  at  all,  it  should  be  termed  a  privy  token. 

But  is  the  defendant  himself  even  so  much  as  a  privy  token  ? 
AVithin  St.  33  Hen.  VIIL,  such  a  token  was  taken  to  denote  "a 
false  mark  or  sign,  forged  object,  counterfeit  letter,  ke}'  ring, 
etc.,  used  to  deceive  persons,  and  thereby  fraudulently  get  pos- 
session of  property."  Black,  Law  Diet.  See,  also,  note  to 
Commonwealth  v.  Speer,  2  Va.  Cas.  67.    Mere  words. are  neither 


■■■ill   ■    I 

1    !,r  111) »;.      F  , 


i 


I  .1 


*>    I 


414 


AMERICAN  CRIMINAL  REPORTS. 


symbols  nor  tokens.  ITcnco  it  has  boon  held  tlint  one  who  i.l). 
tains  a  credit  by  falsely  representing  himself  to  be  in  tnidc, 
and  keeping  a  grocery,  nttera  a  mere  falsehood.  Comnumircdllh 
V.  Warren,  6  Mass.  72.  So,  if  one  falsely  pretends  to  auDtlur 
that  he  has  been  sent  by  a  third  person  for  ^Kiney,  and  obtains 
it  (licg.  V.  Grantham,  11  Mod.  222) ;  or,  in  selling  a  horso  he 
knows  to  be  blind,  wilfully  represents  him  to  be  sound  (Shtfp 
V.  Dchjon,  1  Bay,  353)  ;  or  if  he  knowingly  disposes  of  wrouiilit 
gold  under  the  sterling  alloy  for  gold  of  standard  weight  {Her, 
V.  Bou'cr,  1  Cowp.  323).  In  these  and  like  cases  the  defendant 
but  utters  a  naked  falsehood,  unconfirmed  by  symbol  or  token, 
and  was  not  within  St.  33  Hen.  VIII.  In  the  case  of  Cuinmon- 
n'calth  V.  Wairen,  supra,  the  defendant  represented  his  name 
to  be  William  Waterman,  and  that  he  lived  in  Salem;  and  tlio 
court  said  respecting  it  that,  **if  a  man  will  give  credit  to  tlic 
false^  affirmation  of  another,  and  thereby  suffer  himself  to  \h\ 
cheated,  he  may  pursue  a  civil  remedy  for  the  injury,  but  he 
cannot  prosecute  by  indictment." 

Kow,  were  the  representations  which  the  defendant  made  to 
the  prosecutrix  more  than  wicked  falsehoods,  under  our  statute  i 
or  may  it  be  affirmed  that  his  presence  when  uttering  the  fal-^c- 
hoods  was  the  exhibition  of  a  false  privy  token,  which  imbu-cd 
her  to  part  with  her  money  and  assisted  him  in  consummating 
the  fraud ?  It  was  a  matter  susceptible  of  proof  and  demonstia- 
tion,  upon  inquiry,  for  she  was  not  bound  to  take  his  word  touch- 
ing his  assertions  that  he  was  an  unmarried  man  or  that  his 
name  was  Smith.  His  physical  presence  had  no  tendency  to  es- 
tablish the  one  fact  or  the  other,  and  was  therefore  not  an  ag'Mir, 
in  the  sense  of  a  token  or  symI)ol,  in  consummating  the  doc(>]i- 
tion  and  accomplishing  the  fraud.  He  may  have  been  both  a 
liar,  and  the  symbol  of  a  liar,  but  he  himself,  considered  as  a 
token,  did  not  colitribute,  by  reason  of  his  personal  ajipearancc, 
to  the  deception.  By  the  statutes  of  England  and  many  States 
of  the  Union,  the  element  of  a  false  token  or  symbol  is  elim- 
inated, and  the  law  is  broadly  east  that  whoever,  by  any  false 
pretense,  obtains  money,  etc.,  with  intent  to  defraud,  shall  be 
guilty  of  the  offense.  The  case  of  Reg.  v.  Jennison,  9  Cox,  Cr. 
Cas.  158,  is  cited,  wherein  it  appears  that  the  defendant  was  in- 
dicted for  having  obtained  money  from  an  unmarried  woman 


STATE  V.  RENICK. 


415 


on  tlio  fnlao  representation  that  he  was  a  single  ninn,  that  ho 
wftiihl  furnish  a  house  with  the  money,  and  wouM  tlien  marry 
licr,  and  it  was  held  that  the  false  representation  that  he  was 
not  a  married  man  was  sufficient  to  support  a  conviction  for 
false  pretenses.  But  the  authority  is  nt)t  in  point,  as  the  ile- 
ci-sion  was  made  under  the  enlarged  English  statutes,  and  the 
question  of  a  token  did  not  enter  into  the  controversy,  ruder 
our  statute,  the  pretense  must  be  accompanied  with  a  false  token, 
and  the  question  presented  here  is  whether  defendant  was  hiia- 
sclf  a  false  privy  token.  We  think  he  was  not.  He  did  not  at- 
tempt to  dissimilate  anything  in  existence.  There  are  no  per- 
sonal or  physical  characteristics  known  to  social  science  whereby 
an  unmarried  man  may  be  distinguished  from  one  that  is  mai'- 
ried.  So  that  if  a  man  presents  his  physical  self  to  another 
])orson,  and  says  nothing  of  his  marital  state,  no  one  can  say 
whether  he  at  that  instant  is  married  or  single,  from  the  inspec- 
tion alone.  Testimony  must  be  produced  dehors  tJie  person  from 
which  to  determine  the  fact.  If  he  says  that  his  name  is  Charles 
Smith,  a  fictitious  character,  and  that  he  was  immarried,  when 
he  had  a  wife  living,  this  is  a  mere  descriptio  po-sonce,  and  an 
inspection  of  the  person  will  neither  corroborate  nor  detract 
fi'om  the  statement.  If  he  be  denominated  a  ''token,"  and  that 
token  is  false,  it  is  only  made  so  by  the  lie  he  has  uttered ;  his 
])hysical  existence  does  not  help  to  establish  it.  In  other  words, 
ho  has  not  assimilated  anything  of  real  existence  whereby  the 
unwary  have  been  deceived.  He  did  utter  a  wicked  falsehood, 
and  this  is  a  false  pretense,  but  the  false  token  is  wanting,  and 
therefore  the  indictment  does  not  charge  a  crime.  It  is  neces- 
sai-y  to  specify  the  false  token  in  the  indictment  (2  Wharton, 
Cr.  Law,  §  1129),  and  this  the  State  has  not  done.  The  judg- 
ment of  the  court  below  will  therefore  be  affinned. 


i   t, 


Note  (by  H.  C.  G.). — The  distinction  between  the  foregoing  cases 
of  Weir  and  Renick  seems  to  be  that,  while  in  the  former  the  question 
was  simply  one  of  straight  false  pretenses  as  to  alleged  existing  facts, 
viz.,  that  the  defendant  had  secured  a  responsible  position  and  needed 
the  money  to  enter  upon  its  duties,  and  thus  the  sooner  marry  the 
prosecuting  witness,  which  was  false,  she  relying  upon  such  state- 
ments, in  the  latter  case  it  was  a  question  of  a  false  token,  it  being 
charged  that  the  prosecutrix  was  deceived  by  a  false  token  and  that 
the  defendant  himself  teas  the  false  token.    The  idea  of  the  prosecu- 


410 


AMERICAN  CRIMINAL  REPORTS. 


tlon  was  that,  by  giving  himself  a  flctltious  name,  ho  1)oranie  a  ficti- 
tious and  epurlouB  individual — a  boyua  man,  like  a  bogus  coin  or 
bogus  instrument.  This  was  a  delusion,  because  his  identity  waa  not 
thereby  changed;  he  still  retained  the  same  personality,  and  waa 
nevertheless  the  identical,  genuine  Mi.  Kcnick  that  the  prosecutrix 
knew  and  treated  with,  and  would  have  recogni/.ed,  though  he  had  a 
hundred  aliases.  In  prosecuting  him  she  did  not  intend  to  prosoc  uto 
a  flctltious  personage,  nor  a  flctltious  name,  but  the  actual  person  she 
knew.  If  she  was  deceived  by  coming  into  contact  with  delendant 
personally,  it  was  by  the  actual,  real  Renick,  and  not  by  a  false  sym- 
bol, token,  image  or  shadow  of  him.  The  theory  of  the  prosecution 
was  antagonistic  to  its  aims,  for  how  could  Judgment  be  executed 
upon  a  bogus,  counterfeit  or  mythical  Renick? 


■^  I 


'h  % 


"  Wi^ 


1  f 


State  v.  Wiitdbke. 

124  N.  C.  796—32  S.  E.  Rep.  318. 

False  PnETEN.sEs:   Future  contingencies. 

False  pretenses,  to  be  criminal,  must  be  based  on  existing  facts.  A 
pledge  to  pay  for  goods  bought,  out  of  the  proceeds  of  a  check  ex- 
pected to  be  drawn  in  favor  of  the  purchaser  in  the  future,  does 
not  come  within  the  statute. 

J.  B.  Whidbee,  indicted  for  false  pretenses  in  the  Daio 
County  Superior  Court;  Hoke,  Judge.  Indictment  quasliod, 
from  which  ruling  the  State  solicitor  appealed.  KuHni?  .nl" 
firmed. 

Faircloth,  C.  J.  The  defendant  stands  indicted  fo  htnin- 
ing  goods  under  a  false  pretense.  On  July  12,  1897,  the  de- 
fendant certified  in  writing  that  he  had  received  of  Fuk-lior 
"Twenty-four  dollars  in  merchandise,  the  amount  of  my  check 
for  the  quarter  ending  October  30,  1897,  which  check  I  hereby 
])ledge  in  payment  of  same."  He  failed  to  apply  said  chock  or 
the  proceeds  thereof  according  to  agreement.  The  defendant 
moved  to  quash  the  indictment  on  the  ground  that  it  stated  no 
indictable  offense,  which  motion  was  allowed,  and  the  State  so- 
licitor appealed. 

'  There  was  no  error.  The  offense  charged  does  not  fall  within 
the  meaning  of  the  Code,  section  1027.  The  fact  that  the  de- 
fendant did  not  have,  and  could  not  have,  the  check  for  the  quar- 


THORPE  r.  STATE. 


•H7 


tcr  Ix'gi ruling  August  Ist  to  Octobor  3()tli,  was  pliiiii  nn  the  faco 
of  the  writing,  nnd  was,  or  ought  to  have  been,  known  to  tho 
prosopiitor;  and,  whatever  the  motive  was,  it  was  not  a  fraiuhi- 
lent  representation.  Suppose  the  (h't"en(huit  had  cert i lied  on 
July  12th  that  he  would  represent  the  firm  of  A.  &  Co.  of  New 
York  during  the  same  quarter;  there  would  be  no  false  stah'- 
nient  of  an  e.xisting  fact,  and  the  prosecutor  would  se-"  and  know 
it.    Affirmed. 


TiroRPK  V.  State. 


40  Tex.  Crim.  Rep.  346—50  S.  W.  Rep.  383. 

Decided  March  27,  1899. 

False  Pretenses  and  Swindlixo:  Mlscondt'ct  of  Jurors:  Non-reliance 

on  the  false  pretenses, 

1.  On  every  charge  of  swindling,  it  must  be  alleged  and  proved  that 

the  compiainant  was  induced  to  part  with  his  money  by  the  false 
pretenses;  otherwise  no  offense  is  shown. 

2.  Where  the  complainant  let  defendant  have  money  and  took  his 

check,  telling  him  at  the  time  that  he  did  not  believe  he  had  a 
cent  in  the  bank,  but  that  he  would  give  him  $5  to  catch  him  and 
prosecute  him,  held,  that  the  complainant  did  not  rely  upon  the 
representations,  and  that  no  offense  was  shown. 

3.  It  is  ground  for  reversal  that  Jurors,  during  their  deliberations, 

discussed  the  failure  of  defendant  to  testify  and  explain  the 
charge  against  him;  and  especially  so  in  this  case,  where  they 
coilvicted  the  defendant  against  the  evidence  of  the  prosecuting 
witness  that  he  did  not  rely  upon  defendant's  statements. 

Appeal  by  R.  H.  Thorpe  from  a  conviction  for  swindling,  in 
I  ho  Grayson  County  Court;  Hon.  J.  D.  Woods,  Judge.  Ke- 
versed. 

Md.ry  &  Vowell,  for  appellant. 

lioht.  A.  John,  Asst.  Atty.-Gen.,  for  the  State. 

liKOOKs,  J.  Appellant  was  convicted  of  swindling  of  prop- 
erty under  the  value  of  $50,  and  his  punishment  assessed  at  con- 
finement in  the  county  jail  for  ten  days,  and  a  fine  of  $5,  and 
he  appeals. 

VouXI  — 27 


'»   i 


K 


11 

ll 

'■4 

II  I 

ill 


If* 


r,u  I 


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its: 


i  ; 


if 


Mi 


U 


418 


AMERICAN  CRIMINAL  REPORTS. 


iS'HI 


Appellant's  first  two  grounds  of  his  motion  for  new  trial  are: 

(1)  iJocause  the  court  erred  in  failing  to  give  his  special  charge 
to  the  ctfect  that  the  evidence  was  not  sufficient  to  sustain  the 
charge,  and  instructing  the  jury  to  find  defendant  not  guilty; 

(2)  because  the  evidence  is  wholly  insufficient  to  sustain  the 
verdict  of  the  jury. 

K.  L.  McAfee  testified  for  the  State,  in  substance:  ''About 
February  4,  1899,  in  Grayson  county,  defendant  came  to  me, 
and  asked  nie  to  lend  him  $5.  He  then  owed  me  $5 ;  and  I  said 
to  him,  'You  owe  me  $5  already.'  lie  said,  'Let  me  have  $5 
more,  and  I  will  give  jou  a  check  for  $10.'  I  said  to  him,  'I 
think  you  are  a  shoit  horse,  and  I  don't  believe  you  have  a  cent 
in  the  bank.'  Defendant  said:  'Mr.  McAfee,  you  ought  not  to 
talk  to  me  that  way.  If  I  did  not  have  the  money  I  would  not 
say  so.'  I  then  said:  'Well,  all  right;  if  you  tell  me  you  have 
the  money  in  bank,  I  will  let  you  have  $5,  if  you  will  give  mo  a 
check  for  $10.'  I  gave  him  the  $5,  and  said,  'ISTow,  Thorpe, 
I  have  given  you  this  $5,  but  I  don't  believe  you  have  a  cent  in 
the  hank,  but  I  will  give  you  that  much  to  catch  you,  and,  if 
you  haven't  this  money  in  the  bank,  I  will  catch  you  and  prose- 
cute you.'  I  wrote  the  check,  and  defendant  signed  it,  and  I 
gave  hiu.  the  $5."  The  only  other  evidence  introduced  was  that 
of  the  witness  F.  A.  Batsell,  who  testified  that  he  was  the  teller 
of  the  Merchants'  &  Planters'  National  Bank,  on  whom  appel- 
lant drew  the  check,  and  that,  at  the  time  appellant  gave  tlie 
check  to  ^McAfee,  he  did  not  have  then,  and  has  never  had,  any 
money  on  deposit  in  said  bank. 

The  court,  in  his  charge  to  the  jury,  very  clearly  and  suc- 
cinctly' lays  down  the  necessary  things  to  constitute  swindling: 
"(1)  The  intent  to  defraud;  (2)  an  actual  act  of  fraud  com- 
mitted; (3)  false  pretenses;  and  (4)  the  fraud  must  be  com- 
mitted or  accomplished  by  means  of  the  false  pretenses  made 
use  of  for  the  purpose, — that  is,  they  must  be  the  cause  which 
induced  the  owner  to  part  with  his  property.  An  essential  ele- 
n^n  of  the  offense  of  swindling  is  that  the  party  injured  must 
have  relied  upon,  believed  as  true,  and  been  deceived  by,  the 
fraudulent  representations  or  devices  of  the  party  accused." 
Applying  this  definition  to  the  facts  above  stated,  candor  forces 
us  to  say  that  the  evidence  does  not  make  out  a  case  of  swin- 


e: 
ge 
he 

i7  > 
10 

hit 


^;) 


THORPE  V.  STATE. 


419 


dling,  since  the  evidence  fails  wholly  to  show  that  the  prose- 
cuting witness  believed  or  relied  upon  the  statements  of  a]ipol- 
lunt  that  he  had  money  in  the  Merchants'  k  Planters'  Xational 
Bank,  and  the  prosecuting  Avitnoss  explicitly  told  appellant  that 
he  did  not  believe  he  had  a  cent  in  the  bank;  that  he  (witness) 
would  give  appellant  $5  to  catch  him,  and,  if  appellant  had  no 
money  in  the  bank,  witness  would  catch  him  and  prosecute  him. 
If  the  prosecuting  witness  had  relied  upon  the  statements  of 
appellant  that  he  had  money  in  the  bank,  we  cannot  see  why  he 
pjiould  have  made  the  threat  against  appellant  indicated  by  the 
evidence;  and  when  he  expressly  states  that  he  did  not  believe 
appellant,  and  did  not  believe  that  appellant  had  the  money, 
surely  this  statement  precludes  the  idea  that  the  prosecuting 
witness  was  induced  to  part  with  his  money  by  the  false  repre- 
sentations of  the  appellant.  The  indictment  must  allege,  in 
every  case  of  swindling,  and  the  evidence  must  show,  that  the 
injured  party  w^as  induced  to  part  with  his  property  by  means 
of  the  false  pretenses;  otherwise,  it  is  not  swindling.  AVe  do 
not  think  the  evidence  supports  the  conviction.  See  Buclcahw 
V.  State,  11  Tex.  Crim.  App.  352 ;  Mailiena  v.  State,  15  Tex. 
Crim.  App.  473 ;  Moore  v.  State,  20  Tex.  Crim.  App.  233 ; 
Blum  V.  State,  id.  578. 

Appellant's  third  ground  of  his  motion  for  new  trial  com- 
plains of  the  misconduct  of  the  jury  in  discussing  the  defend- 
ant's failure  to  testify.  In  support  of  this  contention,  appel- 
lant attached  to  his  motion  several  affidavits.  That  of  Henry 
Strong,  one  of  the  jurors,  is,  in  substance,  as  follows:  "That 
while  the  jury  was  deliberating  and  discussing  the  case,  before 
they  had  reached  a  verdict,  the  fact  that  defendant  did  not  tes- 
tify was  mentioned  and  discussed  by  several  members  of  the 
jury.  Affiant  cannot  give  the  names  of  the  jurors  who  so  men- 
tioned the  matter,  but  says  the  following,  in  substance,  was 
stated  by  one  or  more  members  of  the  jury,  to  wit:  That  de- 
fendant had  the  privilege  of  testifying  in  his  own  behalf,  and, 
if  he  had  any  explanation  of  the  transaction  in  which  he  gave 
the  check,  he  ought  to  have  taken  the  witness  stand  and  testified. 
To  this  some  other  juror  replied  that  his  counsel  was  too  sharp 
for  that.  And  this  affiant  then  said  that  it  was  not  proper  for 
the  jury  to  discuss  the  failure  of  defendant  to  testify,  and  that 


'kt    Mil 


a 


'i 


?l 


I't-P' 


420 


AMERICAN  CRIMINAL  REPORTS. 


it  would  invalidate  the  verdict.  To  which  one  of  the  jurors  re- 
plied that  he  did  not  believe  it,  and,  after  this  occurred,  the  fact 
of  defendant's  failure  to  testify  was  further  mentioned  and  dis- 
cussed." The  affidavit  of  W.  A.  Jaines  is  also  attached,  in  sul- 
stance:  "That  after  the  jury  had  considered  the  case  for  awhile, 
and  failed  to  agree  on  a  verdict,  some  members  of  the  jury  saitl, 
in  substance,  that  defendant  had  the  privilege  of  testifying  in 
his  own  behalf,  if  he  had  desired  to  explain  about  giving  the 
check;  that,  when  this  matter  v;as  menlioned,  some  of  the  other 
members  of  the  jury  said  that  the  jury  had  no  right  to  discuss 
defendant's  failure  to  testify,  whereupon  some  other  members 
of  the  jury  took  the  position  that  the  jvu'v  did  have  the  right  to 
discuss  defendant's  faihire  to  testify."  The  State  filed  the  attl- 
davit  of  W.  C.  Eads,  W.  A.  James,*^  G.  W.  Burke,  J.  F.  Smith, 
Henry  Strong,  and  G.  W.  Stubblefield,  for  the  purpose  of  con- 
troverting the  affidavits  file(l  by  a]>pellant,  in  eifect  as  follows: 
"The  question  of  whether  the  jury  had  a  right  to  discuss  the 
defendant's  failure  to  testify  was  mentioned  and  discussed  by 
W.  C.  Eads  and  TIenry  Strong.  Mr.  Eads  took  the  position  that 
the  iurv  had  a  right  to  discuss  the  fact  of  defendant  not  testifv- 
ing,  and  ^Ir.  Strong  taking  the  position  that  the  jui'y  had  no 
such  right.  This  is  about  all  that  was  said,  except  some  one  of 
the  jury  remarked  that  defendant  could  have  told  somethiug. 
The  substance  of  the  statement  was  that  he  had  the  privilege  of 
telling  that,  if  he  wanted  to.  Before,  however,  there  was  a 
word  mentioned  about  the  jury  having  the  right  to  discuss  the 
matter,  the  jury  had  taken  a  vote  on  the  question  of  defendant's 
guilt,  and  the  jury  stood  five  for  conviction  and  one  for  ac- 
quittal ;  the  one  standing  for  acquittal  being  Henry  Strong,  who 
said  that  the  jury  had  no  right  to  discuss  the  qiiestion  of  de- 
fendant's failure  to  testify.  The  discussion  of  this  matter,  nor 
anvthing  mentioned  in  connection  with  defendant's  failure  to 
testify,  nor  anything  said  in  reference  to  the  jury  having  the 
right  to  discuss  the  question  of  defendant's  failure  to  testify, 
liad  any  influence  upon  our  ver<lict,  nor  any  upon  our  opinion 
in  the  matter  whatever;  but  we  arrived  at  our  opinion, of  the  de- 
fendant's guilt,  and  at  our  verdict,  without  being  influenced  a 
j)article  by  any  statement  or  remark  whatever  in  regard  to  de- 


THORPE  V.  STATE. 


421 


ors  ro- 
le fact 
id  (li.s- 
n  sul'- 

said. 


fcndant's  failure  to  testify,  or  the  jury  having  the  right  to  dis- 
cuss it."  On  tho  hearing  of  the  motion,  the  juror  Henry  Strong 
Avas  introduced,  and  testified,  in  suhstance,  as  stated  in  his  first 
ufKchivit,  save  and  except  he  states  that,  when  he  signed  the  affi- 
(hivit  for  the  State,  he  told  ^Ir.  Hare,  the  prosecuting  attorney, 
that  the  affidavit  he  signed  for  defendant  was  correct,  and  called 
his  attention  to  some  points  of  difference  between  the  affidavit 
signed  for  the  State  and  the  first  affidavit  he  made  for  the  de- 
fendant. The  juror  W.  C.  Eads,  in  the  affidavit  made  suhse- 
(juent  to  the  one  wherein  he  joins  the  other  jurors,  makes  this 
statement:  "That  the  question  of  whether  the  jury  had  a  right 
to  discuss  the  failure  of  the  defendant  to  testify  came  up,  and 
was  talked  about.  Soiue  took  the  position  that  the  jury  had 
such  right,  and  others  that  they  did  not."  We  have  repeatedly 
held  that  the  fact  that  tho  prosecuting  attorney  conuncnts  on  or 
alludes  to  the  fact  of  the  defendant's  failure  to  testify  would 
operate  a  reversal  of  the  case.  Article  770  of  the  Code  of 
Criminal  Procedure  reads:  "Any  defendant  in  a  criminal  case 
shall  be  pei-mitted  to  testify  in  his  own  behalf  therein;  but  tho 
fa i hire  of  any  defendant  to  so  testify  shall  not  be  taken  as  a 
circumstance  against  him;  nor  shall  the  same  be  alluded  to  or 
commented  upon  by  the  counsel  in  the  case."  We  think  this 
statute  means  what  it  says,  and  where  a  jury,  as  in  this  case, 
coiiunents  upon  the  fact,  and  alludes  to  the  fact  that  appellant 
did  not  testify, we  think  they  have  violated  the  letter  and  spirit 
of  this  statute.  In  this  case  we  think  the  jury  used  the  fact  of 
the  defendant's  failure  to  testify  as  a  strong  and  potent  cin'um- 
stance  against  him.  This  fact  is  uiide  more  ap])arent  to  our 
minds  by  recalling  the  further  fact  that  the  prosecuting  witness 
had  explicitly  stated  that  he  was  not  deceived  by  appellant's 
false  statement,  and  yet  the  jury  commented  upon  and  allu<l(Ml 
to  the  fact  of  his  failure  to  testify;  an<l  we  have  the  spectacle 
of  one  juror  proposing  to  bet  another  that  it  was  wrong  to  allude 
to  the  fact  of  appellant  not  testifying.  It  is  furthermore  de- 
veloped by  this  record  that  the  jury  had  not  agreed  upon  a  ver- 
dict, but  stood  five  to  one,  at  the  time  this  discussion  com- 
menced, and  subsequently  they  agreed  upon  a  verdict.  Wo 
think  the  misconduct  of  the  jury  in  the  matter  complained  of 


422 


AMERICAN  CRIMINAL  REPORTS. 


entitled  appellant  to  a  new  trial  in  the  court  below.  Wilson  v. 
State,  39  Tex.  Crim.  Rep.  3G5 ;  Tate  v.  State,  38  Tex.  Crim. 
Rep.  261.  For  the  errors  clisoussed,  the  judgment  is  reversed 
and  the  cause  remanded.    Reversed  and  remanded. 

Davidson,  Presiding  Judge,  absent 


I  * 


sWSrfl 


State  v.  Johnson  et  al. 

77  Minn.  267—79  N.  W.  Rep.  968. 

Decided  July  12, 1899. 

False   Pretenses:    Intent — Larceny — Fundless   check — Overdraft — Im- 

plied  authority. 

1.  In  giving  a  check  or  draft  one  does  not  necessarily  represent  that 

the  funds  are  then  on  deposit  with  which  to  meet  it,  but  repre- 
sents that  the  order  Is  valid,  and  that  In  the  ordinary  course  of 
business,  under  existing  circumstances,  it  will  be  paid  when  pre- 
sented. 

2.  Where  officers  of  a  corporation  drew  its  checks  upon  a  certain  bank 

for  five  years,  and  for  a  year  its  account  was  overdrawn  "off  and 
on,"  and  finally,  to  cover  a  shortage  of  $4,600,  gave  Its  note  for 
$5,000  and  collateral  security,  and  the  bank  continued  to  pay  its 
checks,  and  It  continued  to  make  deposits,  somewhat  reducing 
the  shortage,  and  the  officers  drew  the  check  for  |150  for  which 
they  were  Indicted,  and  the  bank,  between  the  drawing  and  pre- 
senting of  that  check  (three  days),  had  paid  about  a  dozen  of  its 
other  checks,  it  was  held  that  no  Intent  to  defraud  was  shown, 
and  that  the  corporation  was  Impliedly  authorized  to  draw  upon 
the  bank. 


John  S.  Lord,  president,  and  Charles  F.  Johnson,  secretary 
and  treasurer  of  the  Lord  Milling  Co.,  tried  in  the  Le  Sueur 
Cotmty  District  Court ;  Cadwell,  Judge. 

Johnson  was  convicted  and  appeals.    Reversed. 

A.  A.  Stone  and  Smith  &  Parsons,  for  the  appellant. 
W.  B.  Doufjlas,  Atty.  Gen.,  and  C.  IF.  Somerhy,  Asst.  Atty. 
Gen.,  for  the  State. 

Start,  C.  J.  The  defendant  was  convicted  of  the  crime  of 
grand  larceny  in  the  second  degree  in  the  district  court  of  the 


STATE  V.  JOHNSON  ET  AL. 


423 


tson  V. 
ICrini. 
I'ersed 


county  of  Le  Sueur,  and  appealed  from  an  order  denying  his 
motion  for  a  new  trial.  The  indictment  is  based  upon  G.  S. 
1804,  §  6711,  which  is  in  these  words: 

'*A  person  who  wilfully,  with  intent  to  defraud,  by  color  or 
aid  of  a  check  or  draft,  or  order  for  the  payment  of  money  or 
the  delivery  of  property,  when  such  person  knows  that  the 
drawer  or  maker  thereof  is  not  entitled  to  draw  on  the  drawee 
for  the  sum  specified  therein,  or  to  order  the  payment  of  the 
amount,  or  delivery  of  the  property,  although  no  express  repre- 
sentation is  made  in  reference  thereto,  obtains  from  another  any 
money  or  property,  is  guilty  of  stealing  the  same,  and  punish- 
able accordingly." 

The  gist  of  the  offense  defined  by  this  statute  is  the  obtain- 
ing, with  intent  to  defraud,  the  money  or  property  of  another 
by  false  pretenses;  that  is,  by  color  or  aid  of  a  check  or  draft 
Avhich  the  accused  has  no  reason  to  believe  will  be  paid.  In 
negotiating  a  chock  the  maker  does  not  necessarily  represent 
that  he  then  had  with  the  bank  funds  out  of  which  it  will  be 
paid,  but  he  does  represent  by  the  act  of  passing  the  check  that 
it  is  a  good  and  valid  order  for  its  amoimt,  and  that  the  exist- 
ing state  of  facts  is  such  that  in  the  ordinary  course  of  business 
it  will  be  met ;  or,  in  other  words,  he  impliedly  represents  that 
he  has  authority  to  draw  the  check,  and  that  it  will  be  paid  on 
presentation.  Such  authority  need  not  be  expressed,  but  it  may 
be  inferred  from  the  course  of  dealing  between  drawer  and 
drawee. '  7  Am,  &  Eng.  Enc.  738 ;  Queen  v.  HazeUon,  L.  R.  2 
Crown  Cas.  134;  Commonwcalfh  v.  Drew,  19  Pick.  179;  Bar- 
ton V.  People,  35  111.  App.  573.  Therefore  if  the  defendant  in 
this  case,  when  he  negotiated  the  cheek  h'ire  in  question,  had 
good  reason  to  believe,  and  honestly  did  believe,  that  he  had 
authority  to  draw  it,  and  that  the  then  existing  state  of  facts 
was  such  that  the  chock  would  be  paid  in  the  ordinary  course  of 
business,  he  is  not  guilty  of  obtaining  money  by  false  pretenses, 
although  the  check  was  not  in  fact  paid  for  want  of  funds.  If 
such  be  this  case,  the  intent  to  defraud,  the  gist  of  the  alleged 
offense,  would  be  wanting.  On  the  other  hand,  if  he  did  not 
have  any  reasonable  cause  for  believing  that  he  was  entitled  to 
draw  the  check,  and  that  it  Avould  be  paid,  the  jury  would  bo 
justified  in  inferring  from  such  a  state  of  facts  that  he  intended 


m 


424 


AMERICAN  CRIMINAL  REPORTS. 


to  defraud  by  color  or  aid  of  the  check,  and  he  was  rightly  con- 
victed. 

The  important  question,  then,  in  this  case,  and  the  only  one 
■\ve  deem  it  necessary  to  consider,  is  whether  the  evidence  is 
sufficient  to  sustain  the  verdict  of  guilty. 

The  evidence  on  the  part  of  the  State  was  to  the  efPeet  fol- 
lowing: The  l^ord  Milling  Company,  a  corporation,  and  herein- 
after designated  as  the  "corporatiiju,"  had  been  engaged  in  the 
business  of  buying  wheat  and  manufacturing  it  into  flour  at 
Elysian,  in  Le  Sueur  county,  for  more  than  live  years  next  be- 
fore July  28,  181)8.  John  S.  Lord  was  its  president,  and  the 
defendant  Charles  F.  Johnson  was  its  secretary  and  treasurer. 
It  did  its  bankinc;  business  durincr  this  time  with  the  Bank  of 
Waterville,  located  at  AVaterville,  this  State,  seven  miles  dis- 
tant from  Elysian.  When  the  corporation  needed  money  for 
immediate  use  in  purchasing  wlieat  for  its  mill,  it  was  accus- 
tomed to  draw  its  check  on  the  Bank  of  Waterville,  payable  to 
J.  S.  ^lorton  &  Co.,  doing  a  banking  business  at  Elysian,  and 
get  the  cash  on  it.  The  account  of  the  corjwration  with  tlie 
bank  was  overdrawn  "off  and  on"  for  a  year  before  the  making 
of  the  check  here  in  question,  but  its  checks  were  always  paid 
by  the  bank.  This  overdraft  amounted  on  June  15,  1808,  to 
$4,600,  and  on  that  day  the  cashier  of  the  bank  wrote  to  the  cor- 
poration, stating  the  amount  thereof,  and  requesting  that  it  be 
adjusted.  Thereupon  and  on  the  next  day  Lord  and  Johnson 
went  to  the  bank,  and  gave  to  it  the  note  of  the  corporation  for 
$5,000,  dated  on  June  16,  1S08,  payable,  with  interest,  in  forty- 
five  days  after  date,  and  secured  its  payment  by  a  pledge  of  the 
stock  of  the  corporation.  The  cashier  testified  that  this  note  was 
taken,  not  in  payment  of  the  overdraft,  but  as  collateral  security 
for  its  payment.  Xothing  was  said  at  this  or  any  other  time 
with  reference  to  a  discontinjance  of  the  practice  of  making 
overdrafts  by  the  corporation.  On  the  contrary,  the  bank  con- 
tinued to  pay  all  the  checks  of  the  corporation  to  July  2'-i,  1898, 
inclusive.     The  cashier's  testimony  on  this  point  is  this: 

"Q.  Was  there  anything  said  at  that  time  with  regard  to 
their  payment  of  the  note  or  the  payment  of  the  overdraft? 
A.  There  was  as  to  tlie  payment  of  the  overdraft.  Q.  And  what 
was  said  ?    A.  I  said  to  them  that  I  didn't  want  tlicm  to  con- 


STATE  V.  JOHNSON  ET  AL. 


425 


sider  thoy  had  forty-five  <lays'  time  on  that  note  ox*  on  the  over- 
draft. 1  wanted  them  to  reduce  the  overdraft  at  once.  Q.  And 
they  did,  didn't  they  ?  A.  Yes.  Q.  And  hetween  June  10, 
1898,  and  July  20,  1898,  they  had  reduced  it  from  $4,000.71 
to  .$;>,50!).S8,  or  more  than  $1,000,  hadn't  they  i  A.  Yes,  sir. 
Q.  llow  had  they  reduced  that '^  A.  Well,  hy  remittance.  They 
had  made  more  remittances,  but  they  were  drawing  out  at  the 
same  time.  Q.  Well,  now  you  paid  all  of  their  checks, — you 
honored  and  paid  all  of  the  checks  drawn  on  your  bank  by  the 
Lord  !^Iilling  Company  from  June  10,  1898,  to  July  1,  181)8, 
didn't  you  ?  A.  Yes,  sir.  Q.  And  you  also  honored  and  paid 
all  of  the  checks  drawn  on  you  and  i)resented  at  your  bank  be- 
tween July  1,  1898,  and  July  2;},  1898,  didn't  you,  inclusive? 
A.  Yes,  sir." 

The  defendant  Johnson,  on  July  20,  1898,  in  the  usual 
course  of  the  business  of  the  corporation,  drew  its  check  for 
$150  on  the  Jiank  of  Waterville,  payable  to  J.  S.  Morton  &  Co., 
who  cashed  the  check,  and  the  money  was  \ised  in  the  business 
of  the  corporation.  This  check  was  pi'csented  to  the  bank  for 
payment  July  25,  1898,  and  payment  refused,  and  on  July  28, 
1S98,  the  bank  commenced  suit  against  the  corporation  and  at- 
tached its  property.  This  was  the  first  refusal  of  the  bank  to 
pay  the  checks  of  the  corporation,  and  there  was  no  previous 
communication  between  them  as  to  the  overdraft,  except  that 
the  cashier  sent  to  the  corporation  its  usual  monthly  statement 
on  July  1,  which  showed  that  the  $5,000  note  had  not  been  cred- 
ited on  the  account,  and  that  there  was  an  overdraft.  Two  days 
subsequent  to  the  making  of  this  check  the  bank  cashed  eleven 
checks  of  the  corporation,  aggregating  $730,  and  on  the  third 
day  thereafter  it  paid  a  further  check  of  the  corporation 
amounting  to  $170,  and  two  days  after  the  making  of  such 
check  the  corporation  deposited  $008  on  account  with  the  bank, 
and  between  June  10,  the  time  of  the  making  of  the  note,  and 
July  25,  the  corporation  paid  into  the  bank  on  its  overdraft  or 
note  some  $1,000.  There  was  only  slight,  if  any,  evidence  that 
the  corporation  was  insolvent  in  fact  at  the  time  the  check  was 
made.    So  much  for  the  evidence  on  the  part  of  the  State. 

The  case  was  dismissed  as  to  Lord,  on  motion  of  the  prosecu- 
tion, at  the  close  of  the  evidence  for  the  State.    Both  Lord  and 


11^ 


E*ir 


426 


AMERICAN  CRIMINAL  REPORTS, 


the  defendant  testified  that  their  understanding  was  that  the 
$5,000  note  paid  the  overdraft,  and  that  it  was  given  for  some 
$400  more  than  the  overdraft,  so  that  they  would  have  enougli 
to  their  credit  to  pay  their  chocks  until  they  made  further  de- 
posits ;  that  the  cashier  first  wrote  a  note  for  the  exact  amount 
of  the  overdraft,  but,  on  the  suggestion  of  the  defendant  and 
for  the  purpose  stated,  the  cashier  prepared  a  new  note  for 
$5,000,  which  was  executed  on  behalf  of  the  corporation.  This 
evidence  as  to  changing  the  amount  of  the  note  and  the  reason 
therefor  was  not  contradicted  by  the  cashier,  nor  did  he  offer 
any  explanation  why  the  change  was  made,  or  why  the  note 
was  finally  made  for  $400  more  than  the  overdraft,  if  it  was 
taken  simply  as  collateral  thereto.  The  defendant  also  testified 
that,  at  the  time  he  made  the  check  and  received  the  money 
thei'con  for  the  corporatif)n,  he  believed  that  he  had  a  right  to 
do  so,  and  that  the  corporation  had  funds  in  the  bank  to  meet  it. 
It  is  not  clear  on  the  face  of  the  record  that  the  prepondoranco 
of  evidence,  on  the  question  Avhcther  the  note  was  given  to  ad- 
just the  overdraft,  is  not  in  favor  of  the  defendant.  But,  assum- 
ing, as  we  must,  for  the  purpose  of  this  appeal,  that  the  cashier's 
testimony  on  this  question  is  entirely  correct,  and  that  there 
was  an  overdraft  at  all  times  after  the  note  was  given,  still  tho 
undisputed  evidence  is  Avell-nigh  conclusive  that  the  defend- 
ant had  good  reason  to  believe,  and  did  honestly  believe,  at  tho 
time  he  made  the  check  in  question,  that  he  was  entitled  to  draw 
it,  and  that  he  had  no  intention  of  defrauding  any  one  by  tho 
cheek  or  otherwise. 

"We  are  in  full  sympathy  with  the  suggestions  of  the  attorney- 
general  that  business  interests  must  not  be  jeopardized  with  im- 
punity by  dead  beats  and  kiters  drawing  and  circulating  worth- 
less checks,  but  such  is  not  this  case.  The  evidence  so  abso- 
lutely fails  to  shoAV  that  the  defendant  made  the  check  and  re- 
ceived the  money  thereon,  Avith  intent  to  defraud,  that  we  should 
be  false  to  our  duty  if  we  failed  to  set  the  verdict  of  guilty 
aside.  It  is  clear  from  the  course  of  business  between  the  bank 
and  the  corporation  that  the  latter  was  impliedly  authorized  to 
make  overdrafts,  and  that  the  authority  was  not  revoked  until 
after  the  check  in  question  was  made.  The  most  that  can  bo 
claimed  from  the  evidence  is  that  the  corporation  was  to  draw 


STATE  V.  JOHNSON  ET  AI* 


427 


no  more  checks  on  the  bank,  unless  the  over(lra:'t  was  reduced. 
Til  is  condition  Avas  complied  with,  and  the  bank  continued 
without  objection  to  pay  the  checks  of  the  corporation  after  the 
giving  of  the  note,  as  it  had  done  before.  Two  days  after  the 
chock  in  question  was  made  and  negotiated,  the  bank  paid 
eleven  checks  of  the  corporation  aggregating  $730,  and  throe 
days  thereafter  another  for  $17G ;  and  the  corporation,  two 
days  after  the  check  was  drawn,  deposited  with  the  bank  an 
amount  four  times  greater  than  the  amoimt  of  the  check.  These 
facts  are  radically  ineonsist'^nt  with  the  claim  that  the  defend- 
ant intended  to  defraud  J.  S.  [Morton  &  Co.  or  any  one  else 
when  he  negotiated  the  check  of  the  corporation  for  its  use  and 
bonofit. 

The  verdict  is  clearly  unsupported  by  the  evidence,  and  it  is 
set  aside,  and  a  new  trial  granted. 

Notes  (by  H.  C.  G.). — The  pretenses  miist  he  not  only  false,  but 
fraudulent. — In  Rex  v.  WiUiams,  7  C.  &  P.  354,  Coleridge,  J.,  in  sum- 
ming up  said:  "Although,  prima  facie,  every  one  must  be  taken  to 
have  intended  the  natural  consequences  of  his  own  act,  yet  if,  in  this 
case,  you  are  satisfied  that  the  prisoner  did  not  intend  to  defraud  Peter 
Williams,  but  only  to  put  it  in  his  master's  power  to  compel  him  to 
pay  a  just  debt,  it  will  be  your  duty  to  find  him  not  guilty.  It  is  not 
sufficient  that  the  prisoner  knowingly  slatt'd  that  which  was  false,  and 
thereby  obtained  the  malt;  you  must  be  satisfied  that  the  prisoner  at 
the  time  Intended  to  defraud  Peter  Williams."    Not  guilty. 

In  People  V.  Thomas,  3  Hill  (N.  Y.).  1G9,  Jones  gave  to  Thomas  his 
note  due  one  day  after  date.  Several  weeks  later  Thomas  called  on 
Jones  for  payment,  telling  him  that  the  note  had  been  burned  or  lost, 
which  was  untrue,  and  Jones  paid  the  note.  Subsequently  it  was 
claimed  Thomas  sold  the  note.  It  was  held  that  the  pretense  was  not 
felonious;  that  there  was  no  intent  at  the  time  to  defraud  Jones,  who 
merely  did  his  duty  in  paying  the  note,  and  that  it  was  no  crime  to 
cheat  a  man  into  his  duty;  that  the  subsequent  transfer  of  the  note 
after  maturity  was  immaterial,  if  a  fact,  and  could  not  injure  Jones, 
if  he  took  the  proper  precautions. 

In  lie  Cameron,  44  Kan.  64,  Mrs.  Cameron  recovered  possession  of 
an  organ  she  had  sold,  and  on  which  there  were  due  payments,  under 
which  the  organ  might  be  taken,  by  making  several  false  statements. 
The  court  said:  "It  is  not  an  indictable  offense,  under  the  statute,  for 
one  to  obtain  by  false  statements  payment  of  a  debt  already  due,  or 
personal  property  to  the  possession  of  which  he  is  entitled,  because  no 
injury  is  done." 

One  of  the  leading  cases  on  this  head  is  People  v.  Getchell,  6  Mich. 
496.  Defendant  was  agent  of  the  prosecutor  in  running  a  store,  for 
which  prosecutor  wois  to  furnish  not  exceeding  |4,000  at  any  one  time. 


u 


i 


r; 

I      a       » 


'i       1 


428 


AMERICAN  CRIMINAL  REPORTS. 


and,  after  paying  the  prosecutor  rent  and  linuidatinR  debts,  defend- 
ant was  to  have  one-half  the  net  proceeds.  That  amount  of  capital 
was  never  furnished,  and  defendant  was  charged  with  gelling  prosie- 
cutor  to  indorse  a  duplicate  note  for  |150  by  faise  pretenses.  A  short 
time  after  prosecutor  toolt  possession  of  the  store.  The  court  below 
would  not  allow  prosecutor  to  be  questioned  as  to  whether  he  had  ac- 
knowledged himself  to  be  a  partner  with  defendant,  or  whether  h.; 
had  paid  debts  of  the  store,  or  as  to  statements  defendant  made  tu  him 
regarding  the  condition  of  the  business,  and  refused  to  allow  the  v.'rlt- 
ten  contract  between  them,  which  fully  set  forth  their  mutual  obliga- 
tions, to  be  read  in  evidence.  The  court  hold  all  of  this  to  be  error; 
that  the  gist  of  the  offense  was  not  merely  the  false  statements,  but 
the  Intent  to  defraud,  which  should  have  been  shown;  and  that  the 
evidence  offered  might  have  disclosed  that  no  fraud  was  designed,  but 
that  defendant  was  rather  seeking  to  make  prosecutor  live  up  to  his 
agreements  in  meeting  the  obligations  of  the  business. 

Failure  to  perform  contract  or  return  money. — A  statute  to  protect 
employers  provided  that  any  person  entering  into  a  written  contract 
with  his  employer  with  intent  to  defraud  him,  and  then  with  like  in- 
tent, and  without  just  cause,  refuses  to  perform  the  services  or  return 
the  money,  etc.,  should  be  punished  as  for  larceny.  The  defendant 
agreed  to  work  for  the  prosecutor  for  one  year  at  ?9  per  month,  re- 
ceiving $20  in  advance,  and  at  the  end  of  seven  months  quit  work.  It 
was  held  that,  as  the  object  of  the  statute  was  to  protect  the  employer 
for  advances  made,  he  could  have  done  all  that  the  statute  contem- 
plated; that  he  could  have  retained  from  the  monthly  payments  sufB- 
cient  money  to  have  Indemnified  himself  for  the  $20;  and  that  the  de- 
fendant was  not  guilty  of  defrauding  him.  Mcintosh  v.  State,  117  Ala. 
128,  23  So.  Rep.  608  (1898). 

'  Drawing  a  check  on  a  bank  scarce  of  funds  not  a  crime. — Prosecutor 
testified  that,  in  return  for  a  loan  of  $20  by  a  check,  the  defendart 
gave  him  a  check  on  another  bank,  which  was  not  paid,  but  did  not 
remember  whether  defendant  told  him  that  he  had  funds  in  the  bank, 
and  could  not  say  that  he  cashed  the  check  on  such  representation, 
but  cashed  It  because  he  believed  it  to  be  good.  From  defendant's 
statements  about  having  cattle  at  the  depot,  he  inferred  that  he  was 
a  cattle  man  and  that  his  check  was  good.  The  court  held  that  the 
evidence  did  not  justify  a  verdict.  That  drawing  a  check  on  a  bank 
that  did  not  have  funds  to  meet  it  was  not  a  crime,  but  that  there 
muse  be  some  false  representation  in  fact,  some  deceitful  means  and 
methods  resorted  to,  as  that  "the  party  has  money  In  the  bank,  or  that 
the  check  will  necessarily  be  cashed,  or  something  of  this  kind." 
Blackwell  v.  State,  51  S.  W.  Rep.  919   (Tex.  Ct.  Or.  App.,  1899). 

Defective  indictments. — Allegations  that  one  of  the  defendants  would 
indorse  certain  notes,  and  assign  and  transfer  them,  are  not  in  har- 
mony with  other  allegations  that  the  notes  were  assigned  and  trans- 
ferred; the  latter  terms  do  not  include,  and  are  not  synonymous  with, 
indorsement ;  the  latter  might  be  done  without  the  former.  State  v. 
Nine,  105  Iowa,  131,  74  N.  W.  Rep.  945  (1898). 

An  Indictment  was  held  fatally  defective  because  it  failed  "to  clearly 


11 


defend- 
capital 

PI'OHP- 

A  short 
below 
had  ac- 
her  he 
to  him 

V.Tit- 

obliga- 
error; 
Is.  but 
lat  the 
'I,  but 
to  his 


STATE  1-.  JOHNSON  ET  AL. 


420 


and  specifically  allege  that  the  party  who  parte;!  with  his  goods,  or 
gave  the  credit,  relied  upon  the  representations,  and  but  for  said  state- 
ments would  not  hci/e  extended  credit  or  parted  with  his  goods,  or 
similar  allegations."  Bryant  v.  Vommonwcalth,  20  Ky.  Law  R.  790, 
47  S.  W.  Rep.  578. 

Slate  V.  Fraker.  148  Mo.  143,  49  S.  AV.  Rep.  1017  (1899),  presents 
some  Interesting  points.  Fraker  was  Indicted  for  an  attempt  to  cheat 
a  life  Insurance  company  by  fraudulent  practices,  It  being  charged 
that  he  obtained  a  policy  and  made  a  '.vlll  in  one  county,  and  that  he 
fal?oly  pretended  that  he  was  drowned  In  another,  and  that  his  exec- 
utor innocently  obtained  a  judgment  against  the  Insurance  company 
in  another  county.  It  was  held  that  enough  should  be  alleged  to  clearly 
show  a  completed  offense  in  some  one  county,  and  so,  definitely  set 
forth  the  acts.  Defendant's  pretending  to  fall  Into  the  Missouri  river 
in  one  county  would  not  constitute  an  offense  in  another  county;  and 
the  Indictment  did  not  specify  to  ichom  the  false  representation  of  pre- 
tending to  fall  in  the  river  was  made;  nor  was  it  alleged  that  he  in- 
tended that  such  pretense  of  drowning  should  be  used  to  obtain  money, 
etc.  Neither  was  it  charged  that  he  instigated  the  executor  to  probate 
his  will  and  collect  the  Insurance,  but  it  teas  alleged  that  the  executor 
proceeded  in  good  faith.  The  representations  that  procured  the  judg- 
ment against  the  insurance  company  were  made  by  the  executor,  and 
not  by  the  defendant,  and  he  would  not  be  held  responsible  for  them, 
unless  it  was  clearly  charged  and  shown  that  he  Instigated  them. 

Indictment — Insufflcient  description. — Some  highly  appropriate  and 
forceful  views  are  expressed  by  the  Supreme  Court  of  New  Jersey  in 
the  contemporaneous  case  of  State  v.  Appleby,  63  N.  J.  526,  42  Atl.  847 
(1899),  on  criminal  pleading.  Indictment  for  false  pretenses.  "A 
large  amount  of  dry  and  fancy  goods  of  the  value  of  2,700  dollars," 
without  more,  does  not  describe  and  designate  the  property  with  cer- 
tainty. It  does  not  inform  the  accused  of  the  nature  and  cause  of  ac- 
cusation against  him,  so  that  he  may  prepare  to  meet  the  charge.  It 
does  not  clearly  identify  the  offense  as  the  same  which  the  grand  jury 
investigated;  neither  he,  nor  the  court,  could  determine  that  question 
from  such  a  description.  To  assume  that  the  defendant  would  know, 
outside  of  the  Indictment,  the  particulars  of  the  charge  against  him. 
and  that  a  slight  suggestion  of  a  single  circumstance  would  call  to  his 
mind  the  whole  affair,  is  to  assume  that  he  is  guilty,  whereas  the  pre- 
sumption of  the  law  is  that  he  is  innocent,  and  perhaps  ignorant  of 
the  transaction,  and  therefore  compelled  to  seek  in  the  indictment  the 
information  necessary  to  apprise  him  of  the  charge  and  enable  him  to 
properly  meet  it. 

Defendant's  failure  to  pay  for  the  goods;  prosecutor  taking  a  mort- 
gage on  the  goods;  and  what  defendant  did  with,  and  said  about,  the 
goods  obtained,  a  year  after. — On  these  questions  the  Supreme  Court  of 
Alabama  made  the  following  pertinent  observations  in  Meek  v.  State, 
117  Ala.  116,  23  So.  Rep.  155  (1898): 

"We  are  of  opinion  the  court  erred  In  permitting  the  State  to  prove 
that  defendant  had  never  paid  for  the  goods  he  obtainea.  If  the  of- 
fense charged  was  committed  at  all,  it  was  committed  at  the  time  the 


»!>■ 


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AmM 


M 


(  ^ ' 


iii 


iiii! 


430 


AMERICAN  CRIMINAL  REPORTS. 


goods  were  obtained.  If  they  were  obtained  by  means  of  the  fnlso 
pretense  alleged,  wltli  the  Intent  at  the  time  to  defraud,  tho  offonHe 
was  complete,  and,  though  the  defendant  may  have  afterwards  re- 
pented, and  paid  for  the  goods,  even  on  the  very  day  due,  he  was  none 
the  less  guilty  by  reason  thereof;  and  eo  convcrso.  If,  when  he  obtalnod 
the  goods,  he  had  no  intent  to  defraud,  or  had  not  made  the  alleged 
false  pretense  which  induced  the  party  to  part  with  the  goods,  ho  was 
not  guilty  at  all,  whether  he  afterwards  paid  for  them  or  not,  and 
without  regard  to  whether  he  afterwards  formed  a  fraudulent  intent 
not  to  pay  for  them.  (Carlisle  v.  State,  77  Ala.  71.) 

"The  court  permitted  the  State  to  prove  by  the  witness  Collins  that 
he  took  a  mortgage  from  defendant  at  tho  time  he  sold  him  the  goods, 
to  secure  the  debt.  The  defendant  objected  to  the  proof  as  being  ir- 
relevant and  immaterial,  and  because  the  mortgage  was  not  produced, 
and  his  objection  was  overruled,  and  he  excepted.  We  think  the  de- 
fendant is  not  in  a  position  to  allege  error  in  this  ruling,  for  the  rea- 
son that  the  evidence  was  beneficial  to  him,  and  prejudicial  to  the 
State.  It  furnished  evidence  to  the  Jury  from  which  they  might  have 
inferred  that  the  sellers  were  induced  to  sell  their  goods  in  reliance 
upon  the  mortgage  security,  rather  than  upon  the  representations  al- 
leged in  the  Indictment.  Unless  by  some  action  or  ruling,  which  doen 
not  appear  to  have  occurred,  this  evidence  was  perverted  to  other  than 
its  legitimate  bearings,  we  cannot  conceive  bow  it  is  possible  for  the 
defendant  to  have  been  otherwise  than  benefited  by  its  Introduction. 
,It  would  clearly  have  been  admissible  evidence  for  him  if  he  had  of- 
fered it  himself  as  a  means  of  showing  an  inducement  to  part  with  tiie 
goods,  other  than  that  charged.  We  must  hold,  however,  that  tech- 
nically the  State  had  no  right  to  introduce  the  mortgage,  nor  evidence 
of  its  contents.  It  did  not  tend  to  prove  any  allegation  of  the  indict- 
ment. Nor  was  it  competent  for  the  State  to  prove  the  declaration  of 
the  defendant  at  the  time  of  the  transaction  that  he  owned  the  articles 
of  property,  though,  properly  viewed  by  the  Jury,  it  was  likewise  bene- 
ficial to  the  defendant  as  going  to  show  that  the  ownership  of  the 
property  was  the  inducement  to  the  firm  to  sell  the  goods. 

"The  testimony  of  the  several  witnesses  as  to  the  efforts  to  gather 
up  the  mortgaged  property,  and  what  defendant  said  and  did  as  to 
what  had  become  of  the  property,  the  next  year  after  the  goods  were 
obtained,  shed  no  light  upon  the  inquiry  whether  he  (defendant),  with 
Intent  to  defraud,  falsely  represented,  perhaps  a  year  before,  that  'he 
lived  in  Geneva  county,  Alabama,  and  was  preparing  to  make  a  crop 
In  Geneva  county  for  the  year  1893,'  and  by  means  of  such  false  pre- 
tense obtained  goods,  etc." 

Where  the  seller  retains  title  to  the  goods,  false  pretenses  do  not 
apply. — Defendant  bought  a  harvester,  giving  a  note  to  the  sellers  in 
which  it  was  stipulated  that  the  title  or  possession  would  not  pass 
from  the  sellers  until  the  note  was  fully  paid,  and  that  the  sellers 
could,  at  any  time  that  they  felt  insecure,  take  possession  of  the  har- 
vester, etc.  It  was  held  that  he  was  not  guilty  of  obtaining  property 
by  false  pretenses,  since  the  sellers  did  not  part  with  the  title  to  the 


m 


ill 


BUHDEN  V.  STATE. 


431 


m  fnlso 
offpiise 
irds  rp- 
as  nono 
litalimd 
aIleKe:i 

ho    WHH 

ot,  and 
Intent 


jtroperty  and  could  resume  posflesslon  of  It  at  any  time;  the  defendant 
not  even  acquiring  an  unqualified  right  to  the  posBeHHlon.  State  v. 
AnileraoH,  47  Iowa,  142.  Reported  la  2  American  Criminal  Reports, 
p.  100. 


Burden  v.  State. 
120  Ala.  388—25  So.  Rep.  190. 
Decided  February  11,  1899. 
Forgery:  Indictment — Innocuous  tcriting. 

1.  A  writing  purporting  to  give  the  value  of  an  article,  without  more, 

is  not  the  subject  of  forgery. 

2.  A  writing  that  does  not  disclose  on  its  face  the  necessary  elements 

to  injure  or  defraud  cannot  become  the  subject  of  forgery  unless 
extrinsic  facts  are  alleged,  clearly  showing  such  elements,  and 
their  connection  with  the  writing. 

Willie  Burden,  convicted  of  forgery  in  the  City  Court  of 
Selnia,  Hon.  John  W.  Mabry,  Judge,  appeals.    Reversed. 

Charles  G.  Brown,  Atty.  Gen.,  for  the  State. 
Mallory,  McLcod  &  Mallory,  for  the  appellant. 

The  opinion  explains  the  facts. 

McClellan,  C.  J.  It  may  be  that  a  writing  in  the  follow- 
ing words,  viz.:  "Mr.  Holmes,  Selma,  Ala. — Dear  Sir:  The 
value  of  this  chain^s  $10.00  (ten)," — is  the  subject  of  forgery, 
under  certain  circumstances  extrinsic  to  the  paper  itself.  Even 
this  we  do  not  decide,  however.  But  it  is  most  clear  that  on  its 
face  this  writing,  by  whomsoever  signed  or  purporting  to  be 
signed,  does  not  create,  discharge,  increase,  or  diminish  a  money 
liability,  or  transfer  or  incumber  property,  or  release  or  impair 
an  existing  claim  to  or  lien  upon  property ;  and  if  extrinsic  facts 
exist,  which,  taken  in  connection  with  the  paper,  impart  to  it  a 
capacity  to  injure  or  defraud,  they  should  have  been  averred  in 
the  indictment.  Xo  such  facts  are  alleged  in  this  indictment, 
and  therefore  neither  of  its  counts  charges  any  offense.  Rem- 
hert  V.  State,  53  Ala.  467;  Dixon  v.  State,  81  Ala.  61,  1  So. 
Rep.  69;  Williams  v.  State,  90  Ala.  649,  8  So.  Rep.  825.    The 


f  t 


f 

'I 

■■ 


;i 


432 


AMERICAN  CRIMINAL  REl'ORTS. 


construction  jnit  upon  tlio  words,  "or  iinv  iustruiniMit  or  writ- 
ing', being  or  jmrporf ing  to  l»e  tlic  act  of  nnotlicr,"  in  section 
4720  of  tli(!  Code,  would  lead  to  tl'is:  that  if  a  man  signed  tlio 
name  of  another  to  a  stalenu'ut  diat  the  earth  is  rountl,  or  that 
tlic  moon  is  made  of  green  ('li(>es(>,  or  other  like  entirely  innocu- 
ous assertion,  h_v  means  uf  which  there  is  no  j)ossiI)ility  of  any 
j)erson  heing  injured  or  defrauded,  ho  would  he  guilty  of  for- 
gery. The  statute  is  not  open  to  such  interpretation,  wo  think; 
and  W((  reiterate,  with  respect  to  the  present  form  of  the  provis- 
ion, what  has  heeii  many  tim(>s  decdared  hy  this  court:  A  writ- 
ing, to  he  the  sid)ject  of  forgery,  must,  either  upon  its  face,  or 
hy  reason  of  attendant  circumstances,  have,  upon  the  assump- 
tion of  its  genuineness,  a  capacity  to  injure  or  defraud.  The' 
trial  court  erred  in  overruling  the  dennirrer  to  the  indictment. 
F'<r  this  the  judgment  of  conviction  will  he  reversed,  and  tho 
cause  will  he  renumded. 


Okawkoki)  v.  Statk. 

40  Tex.  Cilni.  Rpp.  314—50  S.  W.  Rep.  378. 

Decided  March  22,  18'JU. 

FoROKRv:    Defective  indictment — Defective  instrument — Variance. 

1.  An  Indiilment  charging  that  defendant  Crawford  passed  a  forged 

written  Instrument,  containing  thc»se  words:*."  .  .  ,  Mr.  W.  P. 
Williams  and  Brother — iS'ir:  You  will  please  let  Jasper  Uraford 
hav  too  par  of  shoes,  one  pond  of  to  Haker.  (tiinned.)  K.  P. 
Fraser,"  Is  fatally  detective.  Said  writing  Is  on  Us  face  unin- 
telligible. To  make  It  intelligible  there  should  be  explanatory 
averments. 

2.  The  writing  is  a  mere  request  and  purports  no  obligation,  no  liabil- 

ity, no  one  to  whom  the  goods  were  to  be  charged;  nor  does  it 
appear  who  "Williams  and  Hrother"  were,  nor  that  they  (or  he) 
had  goods  to  sell,  etc. 

3.  There  is  a  variance  between  the  name  of  the  defendant  and  that  of 

the  recipient. 


Jasper  Crawford,  convicted  of  ])assing  a  forged  in.'itrtiment 
in  the  D'slrict  Court  of  Shelby  county,  Hon.  Toui.  C.  Daviti, 
Judge,  appeals.     Reversed. 


CRAWFORD  V.  STATE. 


433 


J.  O'B.  ElcJianhoii,  for  the  nppollant. 

Jiohl.  A.  John,  Asst.  Atty.  Cu-n.,  for  the  State. 

ITkndkk.son,  J.    Appellant  was  eonvietcil  of  ])assin<r,  as  tnic. 
n  forf>('(l  instruinont,  and  his  imnishnicnt  assessed  at  eontiiic 
nient  in  the  penitentiary  for  a  term  of  two  years,  and  he  ap- 
pealn. 

The  indietnient  eharged  Jasper  Crawford  Avitli  ])assin<;,  as 
trne,  the  followiiiiij  forged  instrnnient  in  writing,  pnrporting  to 
he  the  act  of  another,  to  wit,  the  aet  of  E.  P.  Eraser,  wliieh  said 
false  inslninient  is  to  the  tenor  following:  "Mareh  the  .'ilst,  'itS. 
y\Y.  W.  1*.  Williams  and  Urother — Sir:  You  will  please;  let 
Jasper  Craford  hav  too  par  of  shoes,  one  pond  of  to  llaker. 
]  SigiiedJ  K.  P.  Eraser."  ^lotion  in  arrest  of  judgment  w;is 
iilctl  hy  appellant  on  the  ground  that  the  indietment  did  not 
allinuaf  ively  show  that  the  said  instrmnent  alleged  to  have  Imhmi 
forged  ami  |)assed  was  sneh  an  instrument  as,  if  true,  wouhl 
jiave  ereate(l,  increased,  diminished,  discharged,  or  defeated 
any  pee\iiiiary  obligation,  etc.,  and  did  not,  of  itself,  contain 
sullicient  words  as  to  he  complete,  without  other  allegations  in 
the  indictment  showing  such  extrinsic  matters,  and  explamitory 
allegations  and  innuendoes,  as  is  necessary  to  make  the  same 
sulHcient  in  law  to  charge  this  deftmdant  with  forgery  or  pass- 
ing the  sanu!  as  true.  Said  indictment  should  have  shown  that 
"W.  r.  Williams  and  Jiroth,--,"  or  "W.  \\  Williams,"  men- 
tioned therein,  was  a  nuM'chant,  and  had  s\u'h  goods  to  sell  as 
were  menti(tne(l  in  said  instrument  (if  such  was  the  ease),  an<l 
that  said  E.  P.  Eraser,  the  purported  nniker  of  said  order,  or 
the  said  Williams,  one  or  both,  could  have  been  injured  hy 
same.  Said  indictment  should  have  shown,  hy  specific  allega- 
tions, wluit  was  meant  and  intended  hy  the  words,  "too,"  and 
"pond  of  to  Baker,"  and  other  words  contained  in  said  indict- 
ment, wliich  iwv  not  plain  and  intelligible;  and  because  therc^ 
is  a  variance  between  the  name  of  ".Ias|)er  (^-aford,"  as  con- 
tained in  the  tenor  clause  of  the  indictment,  and  "Jasper  Craw- 
ford," the  alleged  defendant.  In  our  opinion,  the  grounds  urged 
Avere  well  taken,  and  the  motion  in  arrest  of  judgment  should 
have  b<'en  sustaine<l.    Sec  ^y<)mble  v\  Stale,  IJ!)  Tex.  Crim.  IJep. 

24,  44  S.  W.  Kej).  S27.     In  that  case  we  discussed  somewhat 
Vou  XI  — 28 


431 


AMERICAN  CRIMINAL  REPORTS. 


\i  il 


the  prior  tlocisions  on  this  subject;  among  others,  the  case  of 
IJcndncl-s  V.  State.  2G  Tex.  Crim.  App.  176,  9  S.  AV.  Rep.  555, 
and  lioUins  v.  Stale,  22  Tex.  Crim.  App.  548,  3  S.  W.  Rep. 
759 ;  but  the  instruments  set  out  in  said  cases  were  in  some  i*e- 
spects  more  complete  than  this.  In  both  instruments,  as  a  part 
thereof,  the  words  ''charge  to"  were  contained  therein;  but  1 
there  is  no  request  in  the  instrument  as  set  out  to  charge  iho 
goods  to  any  one,  but  merely  to  let  Craford  have  the  c(M'tain 
goods  mentioned.  .For  aught  that  appears,  it  may  have  be(Mi  an 
accommodation  request;  that  is,  it  does  not  on  its  face  import 
an  obligation.  It  is  not  an  order  to  charge  the  goods  to  any  one. 
Nor  are  we  informed  wlio  "Williams  and  Brother"  were.  Ex- 
trinsic explanatory  averments  should  have  been  used  in  this  in- 
dictment in  connection  with  this  instrument;  and,  besides,  in- 
nuendo averments  shouhl  have  been  used,  showing  what  was 
meant  by  the  misspelled  and  ainbigiious  words  used  in  the  in- 
strument. For  the  errors  discussed  the  judgment  is  reversed, 
and  the  prosecution  ordered  dismissed. 

Davidson,  P.  J.,  absent. 


Note. — A  very  clear  opinion  on  the  lack  of  legal  liability  In  an  al- 
leged forged  writing  was  that  in  the  case  of  Waterman  v.  People,  67  111. 
91.  It  purported  to  have  been  signed  by  the  superintendent  of  the 
Del.  &  H.  Can.  Co.,  and  ran:  "To  any  Railroad  Superintendent:  The 
bearer,  T.  H.  Wiley,  has  been  employed  on  the  A.  and  S.  R.  R.  as 
brakenian  and  fre.ght  hand.  He  goes  west  to  find  a  more  lucrati  'e 
position.  Any  courtesies  shown  him  will  be  duly  appreciated  and  re- 
ciprocated, etc.  H.  A.  Fonda,  Supt."  The  defendant  and  others  we-" 
accused  of  having,  with  intent  to  defraud  the  C,  R.  I.  &  P.  R.  R.  Co., 
attempted  to  pass  it  as  true,  etc.,  the  same  being  false,  etc.  They 
were  convicted.  The  court,  after  remarking  that  the  indictment  failed 
to  show  any  connection  between  the  party  to  whom  the  writing  was 
addressed  and  the  railroad  company,  nor  that  defendants  attempted  to 
pass  it  upon  that  company,  said;  "The  writing,  if  genuine,  has  no  legal 
validity,  as  it  affects  no  legal  rights.  It  is  a  mere  attempt  to  receive 
courtesies  on  a  promise,  of  no  legal  obligation,  to  reciprocate  them. 
We  are  satisfied  the  writing  in  question  is  not  a  subject  of  forgery,  and 
no  indictment  can  be  sustained  on  it,  and  no  averments  can  aid  it. 
it  is  a  mere  letter  of  introduction  which  by  no  possibility  could  sub- 
ject the  supposed  writer  to  any  pecuniary  loss  or  legal  liability.  As 
well  remarked  by  the  prisoner's  coimsel,  courtesies  are  not  the  subject 
of  legal  fraud."    Prisoner  discharged. 


DAVIS  V.  STATE.  435 

Davis  v.  State. 

58  Neb.  465—78  N.  W.  Rep.  930. 

Decided  April  19,  1899. 

Foroery:  Proving  similar  acts — Charging  intent — Copy  of  instrument 
and  necessary  averments. 

1.  "It  shall  be  sufficient  In  any  indictment  where  It  shall  bo  neressary 

to  allege  an  intent  to  defraud,  to  allege  that  the  party  accused 
did  the  act  with  intent  to  defraud,  without  alleging  an  intent  to 
defraud  any  particular  person  or  body  corporate."  Criminal 
Code,  §  417;  Roush  v.  State,  34  Neb.  325,  51  N.  W.  Rep.  755;  More- 
arly  v.  Hlate,  46  Neb.  652,  65  N.  W.  Rep.  784. 

2.  In  a  trial  on  the  charge  of  uttering  forged  instruments,  evidence 

of  similar  acts  on  the  same  day  may  be  received  to  show  the 
guilty  knowledge  or  the  Intent  of  the  accused  in  the  act  charged. 

3.  In  an  information  of  the  uttering  a  forged  written  or  printed  in- 

strument there  should  be  set  forth  a  copy  or  the  purport  of  each 
material  portion  of  said  instrument. 
(Syllabus  by  the  Court.) 

Error  to  the  Douglas  County  District  Court,  Hon.  W.  W.  Sla- 
l)augh,  Judge,  on  behalf  of  George  Davis,  convicted  therein  of 
forgery.    Reversed. 

Macfarlane  tl';  AUschnler,  for  the  plaintiff  in  erroi*. 
C.  J.  Smyth,  Attornej'-Geiieral,  and  W.  D.  Oldham,  Deputy 
Attorney-General,  for  the  State. 

Harrison,  C.  J.  The  ])laintiff  in  error  was  charged  in  an 
information  filed  in  the  district  court  of  Douglas  county  with 
the  forgery  of  railroad  passenger  tickets  in  one  count  of  the  in- 
formation, with  uttering  forged  tickets  in  a  second  count,  and 
with  having  stich  tickets  in  his  possession  in  a  third  coimt.  Dur- 
ing a  trial  the  third  count  was  abandoned  by  the  State,  and  the 
trial  jury  returned  a  verdict  by  which  the  plaintiff  in  error  was 
pronounced  not  guilty  of  the  charge  in  the  first  count  and  guilty 
of  that  in  the  second.  After  motion  for  a  new  trial,  heard  and 
overruled,  the  accused  was  sentenced  to  imprisonment  in  the 
penitentiary  for  a  term  of  three  years.  In  the  error  proceeding 
to  this  court  it  is  complained  that  the  information  was  insuffi- 
cient, in  that  it  charged  the  intent  to  defraud  in  general,  and 
not  as  to  any  specific  or  designated  person,  etc.     It  is  in  this 


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AMERICAN  CRIMINAL  REPORTS. 


cnniK'ction  urged  that  the  doctrine  annnnnccd  l)y  this  court  in 
Jiuu.sh  V.  Stale,  34  Xob.  325,  51  X.  W.  Rep.  755,  and  Morcarly 
V.  Slate,  4i;  Xcb.  052,  05  X.  W.  Rep.  784,  tliat  lo  state  the  in- 
tent to  (k'fraud  generally  will  suffice,  is  radically  wr(»ng,  and 
should  be  overruled.  The  deei.sions  to  which  reference  is  made 
do  not  state  or  ])ublish  a  rule  other  than  is  plainly  and  clearly, 
without  ambiguity,  expressed  by  the  legislature  in  section  417 
of  the  Criminal  Code,  wherein  it  is  prescribed  in  niie(piivocal 
terms,  and  with  no  necessity  or  room  for  construction,  that: 
"It  shall  be  sutKcient  in  any  indictment  where  it  shall  be  neces- 
sary to  allege  an  intent  to  defraud,  to  allege  that  the  party  ac- 
cused did  the  act  with  intent  to  defraud,  without  alleging  an 
intent  to  defraud  any  particular  person  or  body  corporate.'' 
With  this  in  view,  we  must  adhere  to  the  decisions  which  havo 
been  herein  nnide  the  subject  of  attack. 

Tha  evidence  tended  to  i)rove  that  on  July  2,  ISOS,  the  plaint- 
iff in  error  sold  the  ticket  upon  the  sale  of  which  the  charge  in 
the  information  was  ])redicated  lo  a  "ticket  broker"  in  Omaha. 
It  pur[(orted  to  be  th(>  return  p(»rtion  of  an  excursidu  ticket  from 
Chicago  to  Council  Rluffs  and  return.  There  was  also  evidence 
that  on  the  same;  day  the  plaintitf  in  error,  in  the  same  city, 
made  (piitc;  a  numlwr  of  other  sales  to  different  ticket  brokers 
of  similar  tickets,  diifering  probably  only  in  the  number.  Each 
ticket  had  a  specific  nundier.  They  all  ap])eared  t(»  havo  been 
issuetl  by  one  road.  The  nicejition  of  this  evidence  of  the  sales 
other  than  the  one  of  the  ticket  declared  upon  in  the  informa- 
tion was  assigned  for  error,  and  the  assignment  is  now  urged. 
'J'he  general  rule  is  that  the  evidence  of  the  commission  or  at- 
tempt to  comnnt  a  crime  similar  to  the  oni;  charged  is  inad- 
missible. Morgan  v.  Slate,  50  Xeb.  0!)0,  7  X.  W.  Rep.  01; 
Ben/holf  V.  Slate,  25  Xeb.  213,  41  X.  W.  Rep.  130;  Davis  v. 
Slate,  54  Xeb.  177,  74  X.  W.  Rep,  590.  ]5ut  an  exception  has 
been  (piite  uniforndy  nuide  in  trials  of  some  charges,  of  which 
is  th<'  one  in  the  case  at  bar,  where  it  is  necessary  to  show  tho 
intent  or  guilty  knowledge  of  the  accused.  The  evidence  in  this 
case  of  these  similar  acts  was  not  to  show  that  the  party  charged 
had  conmiitte(l  (tther  similar  distinct  crimes,  but  to  bear  ujion 
the  (jnestion  of  his  knowledge  ef  the  cpndity  f»f  his  act,  and  tho 
intent  with  which  he  did  it.     The  acts  of  sales  of  tickets  by  tho 


>m-t  in 
^rear/i/ 
tlie  iii- 
f,  and 

inndo 
early, 
n  417 
ivnenl 

tlint: 
noces- 
fy  jio- 

tg  ill! 
il-iltC.'' 
1   llilVO 


DAVIS  V.  STATE. 


437 


plaintiff  in  error  wore  all  of  one  date,  of  similar  tickets,  in  all 
j)articular3  so  nearly  identical  as  to  bo  almost  connected,  an-l 
-were  clearly  within  the  reason  of  the  exception  to  the  general 
rnle.  The  pnrpose  of,  and  the  effect  to  be  given  to,  the  evidence 
of  the  other  similar  acts  slionld  have  been  ontlined  and  enforced 
by  an  instruction.  Knights  v.  State,  56  Neb.  225,  78  !X.  AV. 
Kep.  508.  For  a  statement  in  regard  to  the  exceptions  to  the 
general  rnle,  sec  Roscoc's  Criminal  Evidence  (7th  ed.),  92.  In 
its  support  there  is  cited  K nights  v.  State,  suprn;  State  v.  Eai/- 
vwnd,  53  K  J.  Law,  2G0,  21  Atl.  Rep.  328;  CommonwraUh  r. 
McCarthy,  119  Mass,  354;  rievson  v.  People,  79  X.  Y.  424; 
1  Rice,  Evidence,  453. 

The  count  of  the  complaint  of  the  charge  of  which  the  plaint- 
iff in  error  was  adjudged  c^.iilty  was  in  part  as  follows:  "And 
the  said  Howard  H.  Raldridge,  county  attorney,  as  aforesaid, 
upon  his  oath,  and  by  the  authority  aforesaid,  further  gives  the 
court  to  understaiul  and  be  informed  that  the  said  George  Davis, 
on  the  said  2d  day  of  .luly,  in  the  year  aforesaid,  in  the  county 
of  Douglas  and  State  of  Xebraska  aforesaid,  then  and  there 
being  in  said  county,  and  then  and  there  having  in  his  custody 
and  possession  a  certain  false,  forged,  counterfeited,  and  falsely 
printed  ticket,  ]>urporting  to  have  been  issued  by  the  Chicago 
&  Xorthwestern  Railroad  Company,  of  the  purport,  value,  an<l 
effect  following,  to  wit."  Here  was  insei.ed  a  copy  of  what  a]i- 
]i('are<l  on  the  face  of  the  ticket,  and  further:  **TIien  and  there 
knowingly  and  feloniously  did  utter  and  publish  the  same  as 
true  and  genuine,  with  the  intent  then  and  there  and  thereby 
unlawfully  to  <lefraud ;  he,  the  said  George  Davis,  then  and 
there  well  knowing  said  false,  fcu'ged,  and  counterfeited  ticket 
as  aforesaid  to  be  false,  forged,  and  counterfeited.''  On  the 
back  of  the  ticket  there  was  stamped:  ''C.  &  X.  W.  llv.  W.  W. 
Coup,  Ticket  Agent,  Jul.  1.,  1S9S.  22  Fifth  Ave.,  Chicago.*' 
This  was  omitted  front  the  complaint.  It  will  be  seen  from  the 
quotation  we  have  made  that  the  chargv  was  of  uttering  a  ticket 
''puriwrting  to  have  been  issued  by  the  Chicago  &  xSorth western 
Railroad  Company."  It  was  testilied  that  a  ])art  of  tiie  act  of 
issuau<'<^  of  each  ticki't  by  an  agent  was  to  stamp  it  on  the  back 
similarly  to  what  ap]>eared  on  the  one  ui)on  which  the  complaint 
was  foimdod,  the  date  in  the  stamp  to  be  that  of  the  issue;  that 


I 


m 


'    •! 


ii 


438 


AMERICAN  CRIMINAL  REPORTS. 


the  impress  of  the  stamp  appears  is  evidential  of  the  act  of  issu- 
ing the  ticket.  Whether  the  impress  of  the  stamp  on  the  back 
of  the  ticket  herein  immediately  in  question  was  spurious  or 
genuine  was  a  subject  of  specific  inquiry  during  the  trial,  Avas  a 
material  fact  in  the  establishment  of  the  charge  in  the  informa- 
tion ;  so  much  so  that  it  may  be  said  that  it  was  elemental  of  the 
accusation,  and,  if  so,  it  should  have  been  of  the  description  in. 
the  information  of  the  alleged  forged  and  uttered  instrument; 
and,  as  it  was  omitted  therefrom,  the  information  was  not  of  tho 
crime  of  which  proof  was  received,  and  there  was  a  variance. 
J! node  V.  Staie,  5  Xeb.  174;  llaslip  v.  State,  10  Neb.  5'J]. 
There  are  other  assignments  of  error,  but  we  deem  their  discus- 
sion at  this  time  unnecessary.  For  the  error  indicated,  tho 
jutlgment  must  be  reversed  and  the  cause  remanded,  llcversetl 
and  reuumded. 


...t.T 


WoMiJLE  V.  State. 

39  Tex.  Grim.  Rep.  24—44  S.  W.  Rep.  827. 

Decided  March  8,  1898. 

Forgery:  Explanatory  averments,  when  necessary — Evidence. 

1.  "Where  the  indictment  sets  out  the  alleged  forged  instrviment  as 

follows:  "May  22,  1897,  Mr.  Brin,  Pies  let  John  Womble  hame 
ine  thing  that  he  wornt — J.  O.  Thompson,"  without  any  explana- 
tory averments,  held,  that  the  indictment  was  fatally  defective. 

2.  Evidence  that  the  defendant  was  generally  reputed  to  be  a  fool  is 

not  competent  to  prove  insanity. 

Appeal  from  tho  Kaufman  County  District  Court;  lion. 
James  E.  Dillard,  Judge. 

John  Wouible,  convicted  and  sentenced  to  two  years'  impris- 
onment in  the  ])onitentiavv  for  attempting  to  pass  a  forged  in- 
strument, appealed.     Itcverscd. 


J.  D.  Cunningham,  for  the  appellant. 
Mann  'Trice,  Asst.  Atty.  Gen.,  for  the  State. 


V     1 


'Henderson,  J.     Appellant  Avas  convicted  of  attempting  to 
pass  as  true  an  alleged  forged  instniment  in  writing,  and  his 


WOMBLE  V.  STATE. 


489 


issu- 
back 
>iis  or 
was  a 
oriria- 
of  the 
1011  iu 
nont; 
of  the 
aneo. 

ISCUS- 

,  tlio 
crsc'tl 


puiiLliinciit  assessed  at  confiiienicnt  in  the  penitentiary  for  a 
term  of  two  years,  and  he  prosecutes  this  appeah 

^Motion  was  made  to  quash  the  indictment  in  the  court  l)elow, 
on  the  ground:  "First,  because  it  charges  no  offense  against  the 
statute;  second,  the  same  is  insufficient,  because  it  does  not  al- 
lege that  said  false  instrument  would  have  incurred,  diminished, 
discharged,  or  defeated  any  pecuniary  obligation,  or  in  any 
iiiaiincr  have  affected  any  property  whatever;  third,  the  same  is 
insufficient  because  vague  and  uncertain,  and  there  are  no  ex- 
planatory words  showing  the  meaning  of  the  words  used  iu  the 
indictment,  so  as  to  make  sense  of  the  same."  The  motion  was 
overruled,  and  appellant  reserved  his  bill  of  exceptions.  The 
cliarging  part  of  the  indictment  is  as  follows:  That  defendant 
"did  wilfully,  knowingly,  and  fraudulently  attempt  to  pass  as 
true  to  II.  D.  Kirsch  a  forged  instrument  in  writing,  to  the 
tenor  following:  'May  22nd — 181)7.  Mr.  Drln,  Pies  let  Joliu 
Womble  hanie  iiie  thing  that  he  wornt.  J.  O.  Thompson,' — 
which  said  instrument  in  writing  the  said  John  AVoinble  then 
and  there  knew  to  be  forged,  and  did  then  and  there  so  attempt 
to  pass  the  same  as  true,  with  intent  to  injure  and  defraud." 
The  contention  here  is  that  the  instrument,  on  its  face,  without 
ex])huiatory  averments  by  way  of  innuendo,  does  not  import  on 
its  face  such  an  obligation  as  is  the  subject  of  forgery.  Wo 
think  the  objection  well  taken.  Certainly,  the  use  of  the  wor<ls 
"hame,-'  "ine,"  and  "wornt,''  should  have  been  exjdnined  liy 
innuendoes.  ^lore  than  this,  in  our  opinion  the  indictment 
should  have  alleged,  by  a  proper  innuendo,  the  object  and  pur- 
])(is('  of  said  order.  If  ^Mr.  Ihiii  was  a  merchant,  and  had  goods 
for  sail',  this  should  have  been  allojiod. 

This  opinion  dues  not  seem  to  be  in  exact  acford  with  the  case 
of  U('ii>liirl\-s  V.  Shite,  2b  Tex.  C'lini.  App.  170,  though  the  in- 
strnnii  lit  in  tlwt  case  was  in  plainer  terms  than  that  ui)oii  which 
the  forgery  was  predicated  in  this  case,  llowrvcr.  the  rule  here 
enunciated  is  in  accord  with  lioUlns  v.  Slate,  22  Tex.  Criin. 
App.  niS.  In  that  case,  however,  there  were  innuendo  aver- 
ments. This  Is  apparent  from  the  o]>iiiion,  though  the  indict- 
inent  is  not  set  out.  Sec  also  Kiiu/  r.  State,  27  Tex.  Crini.  App. 
r)»)7:  Siwms  v.  State,  32  1\'\.  Crim.  Kep.  277;  Daad  i\  State, 
31  Tex.  Crim.  IJep.  400;  Stiaiiiwn  v.  State,  109  Ind.  407,  10 


m 


H 
i 


') 


uo 


AMERICAN  CRIMINAL  REPORTS. 


X.  E.  Rep.  87 ;  Baijuinrjcr  r.  State,  77  Ala.  0" ;  Ilcnnj  v.  Slate, 
35  Ohio  St.  128  ;  State  v.  Wheeler,  19  Minn.  98  (Gil.  70). 

The  court  di<l  not  err  in  refusing  to  pemiit  defendant  to 
prove  the  reputation  of  appellant  as  being  a  fool,  and  that  ho 
was  by  common  reputation  regarded  of  unsound  mind.  In- 
sanity is  not  provable  by  reputation.  We  find  no  error  in  the 
charge  of  the  court;  nor  was  there  any  occasion  to  give  the  spe- 
cial request(!(l  charges.  For  the  error  of  the  court  above  dis- 
cussed in  refusing  to  (piash  the  iiulictment,  the  judgment  is  re- 
versed and  the  cause  dismissed. 

Kcvcrscd  and  dismissed. 


Ei.nuinoK  V.  Statk. 

TG  Miss.  353—24  So.  Rep.. 313. 

Decided  December  19,  1898. 

Forokry:   Evidence — Identity  of  forged  instrument. 

1.  There  can  be  no  conviction  of  forgery  where  there  Is  no  proof  that 

the  instrument  in  writing  was  uttered  l)y  the  accused. 

2.  There  can  be  no  conviction  for  the  statutory  felony  of  knowingly 

having  in  one's  possession  a  forged  instrument  with  Intent  to 
utter  the  same,  where  the  evidence  does  not  Identify  the  docu- 
ment found  In  the  defendant's  possession  with  that  set  out  in  the 
indictment. 

3.  Where  two  orders  were  Introduced  in  evidence,  the  statement  by 

a  witness,  "that  Is  the  order,"  is  not  a  sufficient  identification, 
as  it  does  not  refer  to  either  one  in  particular. 

Appeal  from  the  Lee  County  Circuit  Court,  Hon.  E.  O. 
Sykes,  Judge,  by  Frank  Eldridge,  convicted  of  forgery.  Re- 
versed. 

Two  counts, — the  first  charged  forgery;  the  second  having  the 
forgiMl  instrument  in  his  possession  with  intent,  etc.  Tenor  of 
instrument  in  both  counts  was:  "^Ir.  F.  Elliott,  You  will  pleaso 
let  bearer  have  the  sum  of  .$7  and  40  cents  in  money.  I  ever 
he  wants,  and  charge  to  tne,  yours  truly,  ]Iussey." 

The  State  gave  in  evidence  two  written  orders,  one  like  thoso 
in  the  indictment,  signed  "Ilussey,"  and  the  other  differently 
signed.  The  prosecuting  witness  and  his  clerk  testified  that  tlic 
order  presented  to  them  was  signed  ''C.  C.  Ilussey"  atid  was 


stale, 

nt  to 
lat  lio 
lu- 
ll the 

spo- 

(lis- 

IS  I'C- 


ELDRIDGE  v.  STATE. 


441 


minus  the  word  "money,"  wliicli  was  in  the  copies  in  the  indict- 
ment. A  witness  who  arrested  defenchmt  said  that  lie  found 
two  orders  on  defendant  tlien.  The  court  refused  to  exclude  the 
State's  evidence  on  the  grouiul  of  variance. 

ir.  L.  Clayton,  for  the  appellant. 

Wiley  N.  Nash,  Atty.  Gen.,  for  the  State. 

"WiiixriKi.n,  J.  It  is  clear  that  no  conviction  could  have  heeu 
had  in  this  case,  on  the  testimony  in  the  record,  under  the  iirst 
count.  !N either  of  the  orders  oifercd  in  evidence  was  the  one 
passed  on  Elliott,  Can  the  conviction  he  sustained  on  the  proof 
here,  under  the  second  count  ?  That  count  charges  that  appel- 
lant, having  in  his  jjossession,  etc.,  with  the  intent  to  utter  iuid 
])nhlish  the  same  as  true,  and  with  the  intent  to  defraud  the  said 
Elliott,  etc.  Douhtless  the  proof  of  the  specific  intent  hero 
eliarged  may  he  "inferred  from  the  circumstances  of  the  posses- 
sion," as  stated  in  2  .^^cClain's  Crim.  Law,  §  7S0,  and  in  Peo- 
ple V.  Ah  Sam,  47  Cal.  G5G,  coui)led  with  the  fact  that  the  order 
is  drawn  on  Elliott. 

Tint  there  is  absolutely  no  identification  in  the  proof  of  tho 
t>rder  signed  "Ilusscy"  as  being  the  one  found  in  the  possession 
of  the  defendant.  The  testimony  of  Elliott  and  ^[cAUister  re- 
late alone  to  the  order  passed  signed  C.  C.  Ilussey,  without  the 
word  "money"  in  it,  and  on  which  ^McAllister  had  written, 
"J*aid  to  ]|enrv  Taekert."  Neither  one  of  these  witnesses 
knew  what  order  was  found  on  defendant's  person. 

I'lie  Avilness  Keys  never  identified  the  order  found  on  de- 
fendant's person.  Two  orders  were  in  evidence.  He  was  asked, 
"Look  at  that  paper  and  see  what  it  is,"  and  answered,  "That  is 
the  order."  What  paper?  What  order?  Which  one  of  the 
two?  How  can  this  court  tell  from  such  a  transcript  which  one 
of  the  two  orders  was  meant  ? 

It  was  very  easy  to  have  had  the  witness  identify  the  order 
found  on  defendant's  person,  as  the  one  signed  "Ilussey,"  iu 
such  a  Avay  as  would  make  the  record  show  the  identity.  Un- 
less we  are  to  assume,  without  proof  in  the  record,  that  the 
order  signed  "Ilussey"  was  the  one  found  in  defendant's  pos- 
session, we  cannot  aflirm  this  judgment. 

Judgment  reversed,  verdict  set  aside  and  cause  remanded. 


i«5< 


]>t. 


■'■Si    ti' 

J  4     f 


M'W 


If 

'«  n 

■jt  § 

\ 

V   Vj 

■ 

;  1 

\i 

'■"■ » 

t'^-j[ 

'Xf 

^.■K 

|w 

is 

hIT'mIi 

SliW 

yljfli 

M  i 

i 

'  I 

*  '! 

;^  Hi 


442  AMERICAN  CUIMINAL  REPORTS. 


People  v.  Biud. 

124  Cal.  32—56  Pac.  Rep.  639. 

Decided  March  15,  1899. 

FoRCF.nv:  Other  forgeries — Opinions  of  tcitnesses — Burden  of  proof — 
Incompetent  evidence — Finding  of  check  photographs — Hostility 
of  prosecuting  tcitness. 

1.  Upon  the  trial  of  a  defendant  charged  with  the  forgery  of  a  check, 

where  there  Is  a  conflict  of  evidence  as  to  the  genuineness  of  the 
check,  the  prosecution  assumes  the  burden  of  proof  to  connect 
the  defendant  with  other  forgeries  to  show  guilty  knowledge; 
and  evidence  of  other  forgeries  of  checks  Is  not  admissible 
where  there  Is  no  evidence  tending  to  connect  the  defendant 
therewith  other  than  the  suspicion  arising  from  the  fact  that  de- 
fendant was  the  confidential  clerk  of  the  prosecuting  witness, 
who  did  not  testify  to  a  knowledge  of  the  defendant's  handwrit- 
ing, and  based  his  opinion  that  the  defendant  wrote  the  checks 
upon  the  fact  that  he  did  not  recollect  drawing  them,  and  thought 
the  money  had  not  been  used  In  his  business. 

2.  Evidence  that  a  blank  check  to  which  the  name  of  the  prosecuting 

witness  appeared  to  be  signed  was  torn  up  by  him  and  thrown  In 
the  waste  basket  long  after  the  defendant  was  arrested,  and  that 
it  was  afterward  found  in  a  square  desk  said  to  be  occupied  by 
the  defendant,  without  further  evidence  connecting  the  defendant 
with  the  blank  or  the  desk,  is  Incompetent,  and  Its  admission  is 
erroneous. 

3.  It  is  matter  within  the  discretion  of  the  cpurt  to  require  the  prose- 

cuting witness  to  point  out  upon  enlarged  photographs  the  differ- 
ence between  his  signatures  alleged  to  have  been  forged  and  thoso 
admitted  to  be  genuine. 

4.  A  witness  may  be  permitted  to  state  the  grounds  of  an  opinion  to 

which  he  has  testified;  and  such  statement  Is  not  objectionable 
as  being  necessarily  argumentative. 

5.  The  defendant  should  be  permitted  to  prove  that  the  prosecuting 

witness  had  endeavored  to  persuade  one  of  the  sureties  on  his 
ball  bond  to  withdraw,  as  tending  to  show  a  degree  of  hostility 
and  persecuting  spirit  on  the  part  of  the  witness,  which,  in  the 
opinion  of  the  jury,  might  affect  the.  value  of  his  evidence.  The 
fact  that  It  already  appeared  that  the  prosecuting  witness  was 
hostile  could  not  supply  the  place  of  such  proffered  testimony. 

Appeal  from  a  judgniont  of  the  Superior  Court  of  Los  An- 
geles County  and  from  an  order  denying  a  new  trial ;  Hon. 
]J.  X.  Smith,  Judge. 

The  facts  are  stated  in  the  opinion  of  the  court. 


PEOPLE  V.  BIRD. 


443 


C.  W.  Pcnillelon,  Edwin  A.  Mcscvvo,  and  J.  L.  Copcland, 
fir  the  appellant. 

II'.  F.  Fitzgerald,  Atty.  Gen.,  and  Charles  II.  Jackson,  Dep. 
Atty.  Gen,,  for  the  respondent. 

Tkmi'i.e,  J,  Defendant  appeals  from  a  ju(lp:inent  upon  a 
verdict  convicting  him  of  forgery,  and  from  a  refusal  of  a  new 
trial.  Defendant  was  emi)loyeil  as  clerk  by  G.  J.  Griffith,  and 
U  prosecuted  for  forging  his  employer's  name  to  a  check  on  tho 
First  ^'ational  l>ank  of  Los  Angeles  for  two  hundred  dollars, 
witli  intent  to  defraud  Griffith  and  the  hank.  • 

It  was  j)roved  that  defendant  presented  the  check  to  the  bank 
and  obtained  the  money  thereon,  and  Griffith  testified  that  he, 
tlie  witness,  did  not  draw  the  check  and  had  not  authorized  de- 
fendant to  do  so;  and  further,  that  the  money  drawn  was  not 
u-^ed  by  him,  Griffith,  or  for  his  benefit.  On  tho  other  hand, 
(inive,  the  bank  teller  who  paid  the  check,  and  Mr.  llannnond, 
tlie  assistant  cashier  of  the  bank,  both  testilied  that  in  their 
opinion  the  check  was  genuine. 

There  being,  then,  a  conflict  as  to  whether  the  check  was  genu- 
ine or  not,  the  prosecution  introduced  a  nmnber  of  checks, 
drawn  in  the  name  of  Griffith  on  the  same  bank,  which  he  swore 
were  forgerieSj  and  had  been  paid,  to  his  damage  in  the  sum  of 
about  twelve  hundred  and  fifty  dollars.  There  was  no  evi- 
(1<  lice  whatever  tending  to  connect  l>ird  with  these  forgeries — if 
they  were  such.  A  suspicion  may  have  been  suggested  that  as 
iJird  had  drawn  the  money  upon  one  check,  alleged  to  have  been 
forged,  he  probably  was  guilty  of  the  other  forgeries,  and  had 
been  svstematicallv  coinmittini''  such  forgeries.  As  he  was  the 
cniifideutial  clerk  of  the  prosecuting  witness,  suspiciim  would 
more  naturally  attach  to  him. 

If  ])roof  had  been  forthcoming  to  show  the  connectit)n  of  de- 
fendant with  these  other  checks  which  were  said  to  have  been 
forged,  still  such  coincidence  is  not  admissible  to  prove  the  cor- 
pus dclicli,  but  only  after  that  has  been  established  to  show 
guilty  intent.  And  tho  prosecution  assumed  tho  same  burden 
of  i)roof  as  to  each  of  the  checks  introduced  to  show  guilty 
knowledge  as  in  regard  to  the  check  for  which  he  is  being  tried. 
People  V.  M'hilcman,  114  Cal.  ^38. 


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AMERICAN  CRIMINAL  REPORTS. 


As  to  some  of  these  checks,  Griffith  testified  that  he  believed 
the  signature  to  be  Bird's  signature — meaning,  perhaps,  that  he 
believed  that  Bird  signed  his,  the  witness,'  name.  He  does  not 
say  that  he  knew  Bird's  handwriting,  or  why  he  believed  that 
Bird  wrote  it.  Indeed,  there  is  much  to  show  that  his  opinion 
resulted  simply  from  the  fact  that  he  did  not  recollect  drawing 
the  check,  and  diought  the  money  had  not  been  used  in  his  busi- 
ness. There  can  be  no  doubt  that  the  evidence  was  improperly 
admitted. 

Griffith  was  allowed  to  testify  that  he  had  been  handed  a 
blank  cheek  to  which  his  name  appeared  to  have  been  signed, 
which  blank  he  immediately  tore  up  and  threw  into  the  waste 
basket.  Upon  objection  being  mado,  the  district  attorney  stated 
that  he  would  follow  it  by  testimony  showing  where  it  was 
found.  This  occurrence  was  long  after  defendant  had  been  ar- 
rested, and  it  was  not  proposed  to  show  that  Griffith's  name 
liad  been  signed  to  the  blank  by  Bird,  or  that  Bird  Lad  ever 
^een  it,  otherwise  than  by  showing  where  it  was  found.  After- 
ward one  Hoyle  was  sworn  and  testified,  under  objection,  that 
he  examined  the  contents  of  a  square-top  desk  "said"  to  be  the 
desk  occupied  by  Bird,  and  found  among  them  the  blank  check 
in  question.  When  he  found  it,  or  in  whose  custody  the  de.*k 
liad  been,  or  whether  others  occupied  it  as  well  as  Bird — if  it 
can  bo  assumed  that  Bird  did  occupy  it — was  not  shown.  There 
was  no  other  testimony  connecting  Bird  with  the  blank,  or  with 
the  desk.    The  evidence  was  clearly  incompetent. 

There  are  some  other  alleged  errors,  but  of  less  consequence 
than  those  already  alluded  to,  and  which  do  not  call  for  ex- 
tended notice.  I  think  it  was  a  matter  within  the  discretion  of 
the  court  Avhether  Griffith  should  have  been  required  to  j)oint 
out  upon  the  enlarged  photographs  the  difference  between  the 
signatures  alleged  to  have  been  forged  and  those  admitted  to  bo 
genuine.  The  court  also  properly  excluded  evidence  as  to  what 
ITannnond  said  to  Griffith  as  to  one  of  the  checks,  but  I  think 
that  Gibson  should  have  been  permitted  to  state  the  grounds  of 
an  opinion  that  it  was  argiimentative ;  also  that  the  defense 
should  have  been  permitted  to  prove  that  Griffith — the  prose- 
cuting witness — had  endeavored  to  persuade  one  of  the  siiretios 
on  defendant's  bail  bond  to  withdraw.    The  fact  that  it  already 


PEOPLE  V.  BIRD. 


445 


:iiig 


appeared  that  Griffith  was  hostile  did  not  supply  the  place  of  the 
proffered  testimony.  If  tnie,  such  evidence  would  tend  to  es- 
tablish a  persecuting  spirit,  and  a  degree  of  hostility  which,  in 
the  opinion  of  the  jui^',  might  affect  the  value  of  his  evidence. 
The  judgment  and  order  are  reversed  and  a  new  trial  or- 
dered. 

IIexsiiaw,  J.,  and  !^^cFAT{I.A^'D,  J.,  concurred. 

Notes  (by  H.  C.  G.). — Altering  a  deed. — A  very  important  opinion 
on  this  question  is  to  be  found  in  Johnson  v.  State,  40  Tex.  Crim.  Rep. 
C05,  51  S.  W.  Rep.  382  (1899).  Defendant  and  one  T.  joined  in  execut- 
ing a  deed  of  the  Johnson  homestead  to  S.,  and  T.  inserted,  as  one  of 
the  conditions,  that  S.  should  convey  certain  premises  to  him  (T.),  it 
seeming  that  T.  was  guarantor  for  defendant  on  some  debt.  When  de- 
fendant and  the  notary  took  the  deed  to  Mrs.  Johnson,  she  refused  to 
sign  it  until  after  the  said  condition  was  eliminated,  and  defendant 
erased  it.  It  seems  the  title  was  in  Mrs.  J.  It  was  held  that  if  the 
title  was  in  Mrs.  J.,  then  there  could  be  no  valid  deed  until  after  her 
execution  of  it.  That  consideration  was  not,  however,  material,  for 
the  premises  being  the  homestead,  there  could  be  no  conveyance  with- 
out her  execution  and  privy  acknowledgment,  and  the  erasure  having 
been  made  before  she  executed  the  deed,  there  was  no  alteration  of  a 
deed,  and  no  forgery.  The  fact  that  defendant  and  T.  had  already 
signed  and  acknowledged  the  deed  cut  no  figure,  because  their  acts 
only  became  valid  and  binding  upon  her  executing  the  deed,  and  her 
execution  could  not  relate  back  and  restore  the  erased  condition,  so 
as  to  make  it  the  subject  of  forgery. 

A  nudum  pactum  instrument  cannot  be  the  subject  of  forgery. — In 
People  V.  Parker,  114  Mich.  442,  72  N.  W.  Rep.  250  (1897),  the  defend- 
ant was  charged  with  uttering,  etc.,  a  forged,  etc.,  written  order,  prom- 
issory note,  writing,  etc.,  as  follows:  "Canvass  of  1896.  428.  Name, 
Stewart-Hartshorn  Co.  hereby  agree  to  pay,  on  publication,  $05.00 
(slxty-flve  dollars)  for  the  insertion  of  1  page  and  1  display  heading. 
Stewart-Hartshorn  Co.,  name  of  firm,  .  .  .  520  W.  Ave.  Business, 
Shade-rollers," — with  intent,  etc.  The  court  said;  "We  think  it  is  well 
settled  that  to  constitute  forgery  at  the  common  law  the  forged  in- 
strument must  be  one  which,  if  genuine,  would  bind  another,  and  that 
it  must  appear  from  the  indictment  that  such  is  its  legal  character, 
either  from  the  recitals  or  description  of  the  instrument  itself,  or,  if 
that  does  not  show  it  to  be  so,  then  by  averment  of  matter  aliunde 
which  will  show  it  to  be  of  that  character."  The  court  also  pointed 
out  that  this  instrument  was  not  among  those  designated  by  law  as 
the  subject  of  forgery;  that  it  did  not  show  an  obligation  on  any  one 
to  pay — no  consideration  as  a  basis  for  the  payment — silent  as  to  what 
was  to  be  inserted,  what  the  company  was  to  pay  for,  and,  in  short, 
that  it  was  a  nudum  pactum,  unenforceable  at  law,  and  unlnjurious. 

Repugnant  averments. — The  indictment  charged  that  the  defendant 
"defaced,  altered,  forged  and  counterfeited  a  certain  written  receipt. 


446 


AMERICAN  CRIMINAL  REPORXa 


etc."  This  was  held  to  be  repugnant,  because,  while  a  counterfeited 
writing  is  wholly  false,  an  altered  one  implies  that  the  original  was 
genuine  before  it  was  altered.  State  v.  Bracken,  152  Ind.  565,  53  N.  E. 
Rep.  838    (1899). 

Repugnant  and  variant. — The  charging  clause  was  that  defendant 
forged  an  indorsement  on  a  treasury  warrant  purporting  to  be  the  act 
of  "Wm.  M.  Cooke,  Jr.,"  the  warrant  being  payable  to  the  order  of 
Wm.  M.  Cook,  per  W.  M.  Cook,  Jr.,  and  then  set  out  the  false  indorse- 
ment as  "Wm.  Cook,  per  Wm.  M.  Cook,  Jr.,"  etc.  These  clauses  were 
held  to  be  repugnant  and  variant,  because  according  to  the  latter  alle- 
gations Wm.  Cook  was  the  principal  and  the  party  to  be  bound,  Wm. 
M.  Cook,  Jr.,  only  acting  for  him,  while  in  the  former  the  forgery  was 
charged  as  that  of  Wm.  M.  Cooke,  Jr.  Thulemeyer  v.  State,  38  Tex. 
Crim.  Rep.  349,  43  S.  W.  Rep.  83. 

Uncertain  and  defective  was  an  indictment  that  charged  the  forging 
of  the  name  of  Mrs.  Austin,  to  wit.  Sue  E.  Austin,  to  an  order  for 
fifty  cents — witness  fees — the  order  set  out  purporting  to  have  been 
signed  simply  by  a  "Mrs.  Anrtin."  State  v.,  Chinn,  142  Mo.  507,  44 
S.  W.  Rep.  245   (1898). 

Variance. — It  was  charged  that  J.  N.  Webb  made  a  false  instrument 
signed  J.  N.  Webb,  J.  R.  R.,  and  S.  B.  D.  The  instrument  produced 
in  evidence  purported  to  be  signed  by  S.  E.  D.,  J.  R.  R.  and  N.  Webb. 
Held,  that  there  was  a  fatal  variance.  Webb  v.  State,  39  Tex.  Crim. 
Rep.  534,  47  S.  W.  Rep.  356  (1898). 

Not  reptignant. — But  where  there  was  a  discrepancy  between  the 
tenor  of  the  forged  instrument  as  set  forth  and  the  indorsement 
thereon,  it  was  held  that  there  was  no  repugnance,  because  the  grava- 
men of  the  charge  was  the  false  maMng  of  the  instrument  itself,  and 
not  of  the  indorsement,  and  the  latter  need  not  have  been  set  out. 
Leslie  v.  State  (Tex.),  47  S.  W.  Rep.  367. 

Forging  a  receipt  on  a  money  order  is  not  forging  the  order. — The 
indictment  charged  defendant  A.  P.  Pierce  with  having  forged  a 
United  States  postal  money  order,  and  also  that  he  obtained  the  money 
thereon  by  falsely  receipting  in  the  name  of  R.  H.  Pierce,  the  payee. 
The  court  held  that  forging  a  receipt  attached  to  the  order  was  wholly 
different  from  forging  the  order  itself;  to  establish  the  latter,  it  should 
be  shown  that  he  impersonated  the  postmaster;  that  the  indictment 
was  defective,  and  that  there  was  a  variance  between  it  and  the  evi- 
dence, which  was  that  he  signed  the  receipt.  Pierce  v.  State,  38  Tex. 
Crim.  Rep.  604,  44  S.  W.  Rep.  292  (1898). 

Tinctured  with  ambiguity. — The  forgery  as  set  out — "Mr.  Thomp- 
son, dear  sir,  if  you  please  let  the  negro  have  some  cind  of  a  buggy 
he  is  alwrit —  .  .  .  — you  neants  to  be  afraid  of  him —  .  .  .  — a 
pair  of  harness  too  if  you  have  one —  .  .  .  — let  hime  hove  it." 
Signed  "A.  J.  Hurley"  (on  the  reverse  side) .  The  indictment  contained  a 
number  of  averments  explanatory  of  the  latent  and  patent  ambiguities, 
among  which  was  one  stating  that  Mr.  T.  was  E.  E.  T.,  a  member  of 
Thompson  Bros.  Still  the  indictment  was  held  defective,  for  it  did 
not  appear  who  composed  the  firm  of  Thompson  Bros.,  but  worst  of 
all,  it  did  not  appear  what  negro  was  charged  with  the  offense,  and  it 


DUNN  V.  PEOPLE. 


447 


ndant 
lie  act 
ler  of 
dorse- 
were 
alle- 
Wm. 
was 
Tex. 


would  not  do  to  assume  that  It  was  the  defendant.  Colter  v.  State,  40 
Tex.  Crlm.  Rep.  165,  49  S.  W.  Rep.  379  (1899). 

Handwriting  immaterial. — Defendant  was  convicted  of  passing  a 
forged  instrument.  He  had  asked  for  a  continuance,  among  other 
things,  to  procure  witnesses  as  to  his  handwriting.  The  court  held 
that  he  was  not  prejudiced  on  that  score,  since  the  State's  case  was 
made  out  even  though  the  forgery  was  not  in  his  handwriting.  Les- 
lie's Case,  second  note,  ante. 

Improper  cross-examination. — It  was  permitted  to  cross-examine  the 
defendant,  on  trial  for  forgery,  as  to  whether  he  got  money  from  the 
Loan  &  T.  Co.  on  the  forged  check,  he  not  having  testified  on  that  sub- 
ject on  his  direct  examination.  This  evidence,  it  was  held,  was  a  part 
of  the  prosecution's  case,  and  it  had  no  right  to  make  the  defendant 
supply  its  deficiencies.    People  v.  Dole,  122  Cal.  486,  55  Pac.  Rep.  581. 

Evidence  of  passing  under  assumed  names,  and  of  having  been  ar- 
rested for  drunkenness,  was  held  to  have  been  inexcusably  admitted 
against  the  defendant  on  trial  for  forgery.  Whatever  may  be  the  rule 
as  to  cross-examining  the  defendant  as  to  his  prior  conviction  for  fel- 
ony, it  cannot  be  allowed  that  such  disparaging  evidence  may  be  given 
in  chief.  The  defendant  cannot  be  required  to  defend  against  any- 
thing but  the  specific  charge  against  him.  People  v.  Arlington,  123 
Cal.  356,  55  Pac.  Rep.  1003  (1899). 


Dunn  v.  People. 


172  111.  582—50  N.  E.  Rep.  137. 

Decided  April  21,  1898. 

Homicide:  Several  dying  declarations — Impeachment  of  same — Same 
not  to  be  taken  into  jury  room — Judge  acting  as  examiner  of  tvit- 
nesses — Exclusion  of  evidence — Remarks  by  the  court — Instruc- 
tions. 

1.  Where  a  dying  declaration  is  reduced  to  writing  and  signed  by  the 

declarant,  the  writing  is  the  best  evidence  of  such  declaration; 
but  the  fact  that  a  dying  declaration  has  been  reduced  to  writing 
does  not  preclude  evidence  of  oral  dying  declarations  made  at 
other  times. 

2.  In  criminal  prosecutions  the  People  are  not  restricted  to  proof  of 

a  single  dying  declaration,  but  such  declarations.  If  otherwise 
admissible,  may  be  proved  as  made  from  time  to  time. 

3.  Section  55  of  the  Practice  Act   (Rev.  Stats.  1874,  p.  781),  which 

provides  that  papers  read  In  evidence,  other  than  depositions, 
may  be  taken  by  the  jury  upon  retirement,  is  applicable  to  civil 
cases  only. 

4.  The  mode  of  procedure  in  criminal  prosecutions  is  governed  by 

division  13  of  the  Criminal  Code,  section  8  of  which  provides 


Si 


'wr 


448 


AMERICAN  CRIMINAL  REPORTS. 


that  trials  for  criminal  offenses  shall  be  conducted  as  at  common 
law,  except  as  otherwise  provided  by  the  Code. 

5.  Following  the  common-law  rule,  the  jury,  in  criminal  cases,  may, 

upon  retirement,  take  such  books  and  papers  which  have  been 
produced  in  evidence  as  the  trial  Judge,  In  the  exercise  of  sound 
discretion,  shall  direct. 

6.  Permitting  the  Jury,  upon  retirement,  to  take  a  written  dying  dec- 

laration against  the  defendarl  is  an  abuse  of  the  trial  court's 
discretion,  where  the  defendant's  evidence  was  oral  only,  and 
contradictory  of  the  declaration,  which  constituted  the  principal 
evidence  agaiiist  him,  and  where  the  declaration  contained  pas- 
sages in  brackets  which  the  court  has  ruled  as  inadmissible, 
though  the  Jury  were  orally  directed  not  to  consider  them. 

7.  A  dying  declaration  against  a  defendant  indicted  for  furnishing  a 

drug  to  the  deceased  to  produce  an  abortion  may  be  impeached 
by  contradictory  statements,  made  by  the  deceased  either  before 
or  after  the  abortion,  even  though  such  contradictory  statements 
were  not  made  in  extremis. 

8.  Though  within  the  power  of  the  trial  Judge,  in  criminal  cases,  to 

propound  pertinent  and  properly  framed  Questions  to  a  witness, 
yet  the  examination  of  witnesses  is  the  more  appropriate  func- 
tion of  counsel,  and  instances  are  rare  and  the  conditions  excep- 
tional which  will  Justify  the  trial  judge  in  conducting  an  ex- 
tended examination  of  a  witness,  and  a  sound  discretion  will 
seldom  deem  such  course  advisable. 

9.  The  action  of  the  trial  court  in  propounding  questions  to  witnesses 

will  not  be  reviewed  on  appeal,  nor,  the  record  consulted  to  de- 
termine whether  such  questions  were  leading  or  suggestive,  where 
the  objections  by  counsel  fail  to  specify  the  grounds  thereof, 
being  merely  general  in  character. 
10.  Instructions  which  take  from  the  jury  t*'e  controverted  question 
whether  the  accused  furnished  a  certa.  drug  to  the  deceased 
which  produced  an  abortion  resulting  in  her  death,  as  charged 
by  her  dying  declaration,  and  which  invite  them  to  find  the  ac- 
cused guilty  although  they  believe  some  other  person  committed 
the  crime,  provided  they  believe  the  accused  advised  or  encour- 
aged it,  are  prejudicial,  where  there  is  no  evidence  of  the  latter 
condition  of  affairs. 

"Wri  c  of  error  to  the  Circuit  Court  of  Pike  County ;  the  Hon. 
Jefferson  Orr,  Judge,  presiding.    Reversed. 

W.  E.  Williams  and  W.  H.  Crow,  for  plaintiff  in  error. 
WUliam  Mumford  and  Edwin  Johnston,  for  the  People. 

BoGGs,  J.  At  the  Xovemher  term,  1896,  of  the  Pike  circuit 
court,  an  indictment  was  returned  by  the  grand  jury  charging 
the  plaintiff  in  error  with  the  murder  of  one  Alice  Grimes.  At 
the  April  term,  1897,  of  the  said  circuit  court,  the  cause  was 


DUNV  V.  PEOPLE. 


449 


tried,  and  the  plaintiff  in  error  adjudged  to  be  guilty  of  the 
charge  alleged  in  the  indictment,  and  his  punishment  fixed  at 
confinement  in  the  penitentiary  for  a  term  of  fourteen  years. 
This  is  a  writ  of  error  brought  to  reverse  the  judgment  of  con- 
viction. 

The  theory  of  the  prosecution  was  that  the  said  Alice  Grimes 
became  pregnant  with  child,  and  that  the  plaintiff  in  error, 
with  intent  to  produce  a  criminal  abortion,  supplied  her  with 
and  induced  her  to  take  repeated  large  doses  of  calomel;  that 
the  effect  of  the  administration  of  the  said  drug  caused  a  mis- 
carriage ;  and  that  said  Alice  Grimes  died  as  the  result  thereof. 
Tlie  death  of  said  Alice  Grimes  was  fully  proven.  The  evidence 
that  calomel  was  furnished  by  the  plaintiff  in  error  to  her  con- 
sisted wholly  of  her  dying  declarations,  nor  was  there  any  proof 
that  he  advised  or  counseled  her  to  use  calomel,  other  than  such 
declarations.  The  proof  as  to  her  pregnancy  and  that  an  abor- 
tion was  produced  was  her  dying  statements,  together  with 
proof  of  circumstances  which  the  People  insist  are  corrobora- 
tive upon  the  point 

The  circiiit  court  ruled  that  the  deceased  was  in  such  condi- 
tion, physically  ^nd  mentally,  for  a  period  of  seven  days  prior 
to  her  death,  that  statements  made  by  her  were  admissible  in 
evidence  as  dying  declarations.  Witnesses  were  produced  and 
allowed  to  testify  to  declarations  made  by  her  in  their  presence 
on  four  different  days,  and  proof  was  also  made  that  statements 
made  by  her  on  still  another  day  were  reduced  to  writing  and 
signed  by  her,  and  this  written  statement  was  produced  and 
read  in  evidence  to  the  jury.  The  plaintiff  in  error  objected 
to  the  admission  of  the  oral  dying  declarations  on  the  ground 
that  where  such  declarations  have  been  repeated  at  different 
times,  and  at  one  of  which  times  such  statements  were  reduced 
to  writing,  only  the  written  statement  is  admissible  in  evidence. 
The  court  overn.led  the  objection,  and  the  plaintiff  in  error  ex- 
cepted, and  now  urges  the  ruling  of  the  court  as  error.  The 
rule,  as  we  understand  it  to  be,  is,  if  the  dying  statements  are 
reduced  lo  writing  and  signed  by  the  declarant,  the  writing  is 
the  best  evidence  of  the  statemeiit  made  at  that  time,  and  must 
be  produced  or  its  absence  accounted  for,  but  thac  the  fact  that 

a  declaration  has  been  reduced  to  writing  will  not  preclude  evi- 
VoL.  XI  — 29 


450 


AMERICAN  CRIMINAL  REPORTa 


i  ! 


i 


dcnco  of  unwritten  declarations  made  on  other  occasions.  Whar" 
ton  on  Crina.  Evidence,  sec.  295 ;  Bishop  on  Crira.  Pros.,  sec. 
1213;  lloehhoimer  on  Crimes,  sec.  184;  McClain  on  Crim. 
Law,  sec.  429,  and  authorities  cited  in  note  g. 

Nor  is  the  contention  of  the  plaintiff  in  error  tenable  that  the 
People  arc  restricted  to  proof  of  the  declarations  made  on  one 
occasion  only.  Such  statements,  if  otherwise  admissible,  may 
bo  proven  as  made  from  time  to  time. 

When  the  jury  retired  to  consider  of  their  verdict,  the  court, 
over  the  objections  of  the  plaintiff  in  error,  permitted  the  jury  to 
take  the  written  dying  declarations  into  the  jury  room  for  their 
consideration,  and  this  action  of  the  court  is  urged  as  error.  Sec- 
tion 55  of  the  practice  act  (Rev.  Stat.  1874,  p.  781),  which  pro- 
vides that  papers  read  in  cvIoLiice,  other  than  depositions,  may 
be  taken  by  the  jury  upon  their  retirement,  is  applicable  only 
to  civil  cases.  The  mode  of  procedure  to  be  observed  in  the  trial 
of  criminal  cases  is  governed  by  the  provisions  of  division  13  of 
the  Criminal  Code  (Rev.  Stat.,  p.  409).  The  eighth  section  of 
the  division  (1  Starr  &  Curtis'  Stat.  1896,  par.  012,  p.  1400) 
provides  that  all  trials  for  criminal  offenses  shall  be  conducted 
according  to  the  course  of  the  common  law,  except  when  the 
Criminal  Code  points  out  a  different  mode.  Nothing  in  the 
said  division  of  the  Criminal  Code  purports  to  direct  what  shall 
be  taken  by  the  jury  from  the  bar  of  the  court.  The  common- 
law  rule  in  criminal  cases  was  that  the  jury,  when  they  retired 
to  deliberate  on  their  verdict,  should  take  with  them  such  books 
and  papers  which  had  been  produced  in  evidence  as  the  judge 
presiding  should  direct.  1  Bishop  on  Crim.  Proc.  (3d  ed.),  sec. 
9S2a;  Ilochheimer  on  Crimes,  sec.  250.  ^^^lether  a  writing  in- 
troduced in  evidence  in  a  criminal  case  should  be  delivered  to 
the  jury  to  be  consulted  by  them  in  the  jury  room,  rests  in  the 
sound  discretion  and  judgment  of  the  court,  and  it  is  therefore 
not  error  to  permit  a  jury  to  take  a  written  statement,  unless 
the  reviewing  court  can  say  that  such  course  was  prejudicial 
to  the  defendant,  and  ought  not,  in  the  exercise  of  sound  dis- 
cretion and  judgment,  have  been  pursued.  The  written  state- 
ment in  question  assimilated  so  nearly  to  a  deposition  that  all 
of  the  reasons  which  have  by  text-writers  and  coiirts  been  ad- 
vanced in  support  of  the  view  that  depositions  should  not  bo 


sec. 


DUNN  V.  PEOPLE. 


451 


taken  by  a  jury  in  their  retirement  may  well  bo  iavokorl  as  rea- 
sons why  this  statement  should  not  have  been  allowed  to  go  into 
the  jury  room. 

In  llaivson  v.  Curtiss,  19  111.  45G  (which  was  decided  prior 
to  the  enactment  of  the  section  of  the  practice  act  which  ex- 
cludes depositions  from  the  jury  when  in  tl^sir  retirement),  !Mr. 
Justice  Brecso,  after  forcibly  stating  the  injustice  of  allowing 
Avritten  testimony  to  be  taken  into  the  jury  room,  declared  that 
the  practice  of  permitting  depositions  to  be  taken  out  by  the 
jury,  cither  with  or  without  the  direction  of  the  court,  was 
wn  ng  in  practice  and  shoiild  be  abolished.  This  remark  of  the 
coui't  applies  Avith  greater  force  to  dying  declarations  than  to 
dejiositions,  regularly  and  lawfully  taken;  because,  when  a  dep- 
osition is  taken,  ample  opportunity  is  given  the  adverse  party 
to  appear  and  cross-examine  the  witness,  and  thereby  expose 
any  errors,  bring  out  suppressed  facts  which  would  weaken  or 
qualify  the  statement,  test  the  truthfulness,  recollection,  and 
fairness  of  the  witness,  and  aid  to  determine  as  to  the  truth  of 
his  statements,  while  no  such  opportunity  is  permitted  when  a 
dying  declaration  is  reduced  to  writing.  In  tlie  case  at  bar, 
dying  declarations  of  the  deceased,  made  on  four  occasions 
other  than  when  the  written  statement  was  signed,  were  repro- 
duced by  witnesses  for  the  State  before  the  jury.  The  written 
statement  was  read  in  their  hearing.  They  heard  no  evidence 
on  the  part  of  the  plaintiff  in  error  except  such  as  was  testified 
to  by  witnesses  in  their  presence,  and  the  testimony  so  produced 
in  behalf  of  the  plaintiff  in  error  was  in  direct  conflict  with  ma- 
terial portions  of  the  dying  declarations.  To  deliver  the  written 
statement  to  the  jury  so  they  might  have  it  constantly  before 
them  during  their  deliberations,  to  operate  on  their  sympathies 
as  well  as  their  memory,  tended  to  give  a  manifest  advantage  to 
the  People  over  the  plaintiff  in  error,  whose  proof  was  but  oral. 
Ko  reason  is  suggested,  nor  is  any  perceived,  why  the  one  party 
should  have  thus  been  given  an  advantage  over  the  other. 

The  circuit  court  ruled  that  certain  portions  of  the  written 
statement  were  not  admissible  in  evidence  and  not  competent 
for  the  jury  to  consider,  and  ordered  these  portions  to  be 
marked,  and  orally  announced  the  jury  should  not  consider 
such  marked  phrases.     It  appears  from  the  record  these  in- 


Inii 


|i    i 


452 


AMERICAN  CRIMINAL  REPORTS. 


coinpctont  phrnscs  or  words  were  ninrkoil  by  being  inclosed  with 
brackets.  A  siniilnr  conrsc  was  pnrsued  with  reference  to  dep- 
ositions which  the  conrt  permitted  the  jury  to  take  with  them  in 
their  retirement  in  the  case  of  llau'S07i  v.  Curtiss,  supra,  and  in 
tJie  course  of  the  criticism  upon  such  practice  this  court  saiil 
(pfljj;e  481)  :  "The  jury  may  or  may  not  have  disre/j;ar(U'd  tlie 
marked  portions.  This  cannot  be  known  certainly,  as  there  is 
no  jironf  to  the  point,  but  it  is  certainly  apparent  that  they  had 
no  other  instructions.  They  were  not  told,  in  exi)ress  terms,  to 
disregard  them.  Even  had  they  been  thus  told,  such  is  our  na- 
ture that  by  the  very  command  not  to  regard  them  curiosity 
would  be  aroused  to  know  what  they  were ;  what  secret  it  is  the 
court  designs  to  hide  from  them ;  what  tree  of  knowledge  of 
good  and  evil,  the  fruit  of  Avhich  is  forbidden  to  us,  and,  liko 
their  first  parents  in  God's  own  garden  ])lanted  for  them,  they 
would  phick  and  eat.  It  is  hunum  nature,  and  mountains  of  in- 
structions could  not  crush  it  out.  Keading  and  ])ondering  these 
rejected  portions,  and  reasoning  with  one  another  why  th(>y 
phould  have  been  excluded,  their  minds  would  naturally  be  im- 
jiressed  by  them,  and  they  unconsciously  form  conclusions  from 
the  rejected  evidence.  Few  know  the  secret  and  insidious  man- 
ner by  wiiich  impressions  are  made  on  the  mind,  or  how  slight 
the  operating  cause  may  be."  We  think  that  a  sound  discrim- 
inating discretion  was  not  exercised  in  the  matter  of  ])ormi(ting 
the  written  statement  to  be  taken  by  the  jury  whon  they  retired 
to  consider,  M'cigh,  and  determine  the  testimony. 

The  case  as  relied  u]ion  by  the  People,  the  proof  thereof 
being  the  dying  declarations  aforesaid,  was  that  the  plaintiif  in 
error,  late  in  the  afternoon  on  the  2d  day  of  Jiily,  189(5,  gave 
to  the  <leceased  a  quantity  of  calomel,  and  directed  her  to  take 
the  same  for  the  purpose  of  procuring  an  abortion ;  that  she  took 
two  doses  of  the  calomel  on  the  same  djiy.  That  an  abortion  oc- 
curred on  the  19th  day  of  July  is  claimed  to  have  been  estab- 
lished by  the  dying  statements  of  the  deceased  and  other  testi- 
mony in  corroboration  upon  that  point.  The  plaintiff  in  error 
Avas  produced  as  a  witness  in  his  own  behalf,  and  among  other 
things  testified  that  he  had  a  conversation  with  the  deceased  on 
the  11th  day  of  July,  1896,  in  front  of  a  barber  shop  in  tho 
village  of  Xebo,  and  a  second  conversation  at  his  store  in  the 


DUNN  r.  PEOPLE. 


453 


with 
(Icp- 
>iu  in 
nd  in 
snid 
1  the 
I'o  is 
y  had 

IS,   to 

r  na- 
ositv 
s  tlio 

f,C  of 

like 

tlioy 

of  in- 

tlioso 
thoy 

0  ini- 

fl'OUl 

nian- 
?]if?lit 
crim- 
(tin_i( 
tired 


villngo  on  the  20th  day  of  the  same  month,  and  hiss  counsel  pro- 
pounded to  him  certain  questions  for  the  purpose  of  hrinji;ing 
out  statements  and  dechirations  which  ho  alleged  the  deceaseil 
made  to  him  during  said  conversations  contradictory  to  ma- 
terial portions  of  the  alleged  dying  declarations.  The  court 
ruled  such  declarations  were  not  admissible  in  evidence,  and  in 
so  ruling  made,  in  the  hearing  and  presence  of  the  jury,  the  fol- 
lowing remarks:  "That  is  not  only  objcctionalde,  but  it  oujilit 
not  to  be  repeated  before  tlie  jury.  Such  evidence  won't  dn. 
If  conversations  conceived  in  the  fertile  mind  of  a  defendant 
can  bo  admitted  when  the  woman  is  dead  and  cannot  refute  it, 
it  would  render  convictions  in  this  class  of  cases  impossible." 
Counsel  for  plaintiff  in  error  objected  and  excei)ted  to  the 
ruling  and  remarks  of  the  court.  It  is  well  settled  that  dying 
declarations  may  be  impeached  by  proof  of  contradictory  state- 
ments on  material  ])oints,  though  such  contradictory  statements 
were  not  made  in  extremis.  Bishop  on  Crim.  Proc,  sec.  120'J; 
Wharton  on  Crim.  Evidence,  sec.  298 ;  McClain  on  Crim.  Law, 
sec.  431 ;  Ilochheimer  on  Crimes,  ]S4. 

After  the  evidence  for  the  plaintiff  in  error  (the  defendant 
below)  had  been  submitted  and  the  rebuttal  evidence  for  the 
People  introduced,  the  court  announced  that  the  plaintiff  in 
error  might  be  recalled  and  allowed  to  testify  as  to  the  state- 
ments of  the  said  deceased  in  front  of  the  barber  shop  on  the 
11th  day  of  July,  and  that  conversation  was  testified  to,  but  the 
court  again  refused  to  allow  the  plaintiff  in  error  to  introduce 
testimony  as  to  the  statements  of  the  deceased  in  the  store  on 
the  20th  day  of  July. 

When  the  question  as  to  the  admissibility  of  the  alleged  .state- 
ments of  the  deceased  to  the  pla  ;.Liff  on  the  20th  day  of  July 
Avas  before  the  court,  but  after  the  court  had  made  the  renuirk 
thereinbefore  set  out,  it  was  ordered  that  the  jury  be  with- 
drawn, and  the  plaintiff  in  error,  in  the  absence  of  the  jury, 
detailed  to  the  court  the  conversation  which  he  alleged  occurred 
between  himself  and  the  said  deceased  in  his  store  while  other 
parties,  namely,  Asa  Gheen  and  Mrs.  Pinkcrton,  were  in  the 
store.    As  to  that  the  plaintiff  in  error  testified  as  follows : 

"The  court:  What  did  you  say  she  said  to  you  on  the  20th  of 
July  ? 


i 


45^ 


AMERICAN  CRIMINAL  REPORTa 


"A.  She  cnmo  up  to  the  store,  nnJ  she  said,  *I  am  us  imlc- 
l)cmlcnt  now  as  you  are.'  I  said,  *1  thought  you  was  always  as 
independent  as  I  was.'  She  said,  *I  miscarried  this  morning.' 
I  said,  'Yes;  I  expect  you  did.'  She  said,  'I  did.'  I  said,  'I 
guess  you  didn't,  did  you?'  She  said,  'Yes;  I  did.'  I  said, 
'Alice,  I  know  better  than  that;  I  know  you  wouldn't  he  out 
here  in  this  mud  and  wet  and  rain  if  you  had  done  anytliing  of 
that  kind.'  She  said,  'Well,  I  did.'  I  said,  'My  Lordl  girl, 
ain't  you  got  more  sense  than  that?'  She  said,  'Ohl  it  won't 
hurt  me.'  I  said,  'It  will.'  Then  she  wanted  to  know  if  I 
wouldn't  take  her  home  after  lodge.  I  said,  'No ;  I  wouldn't  go 
that  night  for  five  dollars,  the  kind  of  a  night  it  was.'  She 
said,  'Yo\i  would  if  ^Iau<le  Smith  or  ^lollie  Johnsou  wanted 
you  to.'  Slie  said,  *I  told  you  all  the  time  I  was  in  a  family 
way,  and  you  wouldn't  believe  it.'  I  said,  'Alice,  if  you  iiro 
telling  me  the  tnith,  for  God's  sake  go  and  see  a  doctor  and  go 
home.'  She  said,  'There  is  nothing  the  matter  with  me  now, 
only  falling,  of  the  womb.'  I  told  her  to  go  and  see  a  doctor, 
and  she  said,  'Xo.'  I  said,  'You  will  kill  yourself  in  this  rain.' 
Just  at  that  time  Dr.  Pollock  stepped  in  the  drug  store  with  a 
chair. 

"Q.  ^Vhat  was  said  in  the  store  while  Asa  Gheen  and  Mrs. 
Pinker  ton  was  there  ? 

"A.  She  said  to  me,  'You  don't  care  anything  for  mo,'  or 
something  of  that  kind.  I  said,  'Why,  certainly  I  do.'  Slio 
said,  'Why  don't  you  take  me  home?  I  said,  'Alice,  if  yon 
don't  quit  going  with  Babe  Graham  I  won't  have  anything  to 
do  with  you.'  She  said,  'Babe  Graham  is  a  devilish  sight  bettor 
than  you  are.'  She  said,  'When  I  was  in  trouble  you  were  not 
willing  to  help  me,  and  Babe  Graham  did.'  I  said,  'How  did 
that  come  ?'  She  said,  'AMion  I  was  in  trouble  you  would  not 
help  me.'  I  said,  'Alice,  what  is  the  use  of  saying  that  ?  Did 
I  not  offer  yoii  the  money  to  go  wherever  you  wanted  to  V  She 
said,  'You  know  I  could  not  go  away,  and  would  not  have  of- 
fered me  the  money  if  you  thought  I  would.'  " 

These  alleged  statements  of  the  deceased,  if  time,  were  incon- 
sistent with  the  alleged  dying  declarations  in  more  than  one  ma- 
terial point.  It  was  fairly  to  be  inferred  from  the  statements 
so  testified  to  by  the  plaintiff  in  error  that  the  abortion,  if  any 


Lrs. 


DUNN  V.  PEOPLE. 


455 


occurred,  wns  produced  without  the  knowledge  or  participation 
of  the  plnintilf  in  crrf)r,  and  that  one  Babe  Graham  was  the 
person  who  assisted  and  participated  in  effecting  the  abortion. 

The  argninent  of  counsel  for  defendant  in  error  is  tliat  the 
conversatitin  in  question  was  properly  excluded  because  (1)  it 
was  had  after  the  akirtion;  and  (2)  that  the  alleged  statement 
of  the  (Igceascd  that  Babe  Grahfim  helped  In  r  out  of  her  trouble 
may  have  had  reference  tx»  some  other  troiible  not  connected 
with  her  pregnancy.  We  know  of  no  rule  restricting  the  plaiiit- 
iflF  in  error  to  the  proof  of  contradictiiy  statements  made  prior 
to  the  abortion,  nor  do  we  perceive  any  reasnii  for  the  adoption 
of  such  a  rule.  The  other  objections  to  the  admiasitm  of  the 
statements  must  be  overruled  for  the  reason  the  evidence  tcndetl 
to  show  the  "trouble"  referred  to  was  the  alleged  abortion,  and 
it  became  thereupon  the  duty  of  the  court  to  permit  the  jury  to 
receive  and  consider  the  testimony.  It  was  error  to  i-et'use  to 
allow  plaintiff  in  error  to  introduce  proof  of  the  excluded  al- 
leged statements. 

The  expressions  of  the  court  in  ruling  that  such  evidence 
should  be  excluded  are  also  assigned  as  prejudicial  error  by  the 
])hiintilf  in  error;  and  in  this  same  connection  we  may  cousiih-r 
the  complaints  of  the  plaintiff  in  error  that  the  court  improperly 
undertook  to  examine  and  cross-examine  different  witnesses  pre- 
sented by  the  respective  parties,  and  asked  improper  and  lead- 
ing questions  of  such  witnesses.  The  court  propounded  a  num- 
ber of  interrogatories  to  Malissa  Grimes,  the  mother  of  the  do- 
ceased,  and  to  ^[rs.  Couch,  in  the  examination  of  said  witnessos 
in  chief  for  the  People,  and  in  the  redirect  examination  of  ^Jrs. 
Grimes,  and  to  the  plaintiff  in  error  upon  cross-cxani'uation. 
The  plaintiff  in  error  objected  to  thirteen  of  the  questions  so 
framed  by  the  court,  and,  the  objections  being  overruled,  pre- 
served exceptions.  The  court  determined  it  was  admissible  to 
pi'ove  certain  declarations  of  the  deceased  as  dying  declarations, 
and  ^Ivs.  Grimes  and  ^Irs.  Couch  were  introduced  as  Avitnesses 
to  detail  such  declarations.  During  the  course  of  their  examina- 
tion iii)on  this  sul)ject  the  court  propounded  to  them  a  number 
of  questions  which  counsel  for  plaintiff  in  error  objected  and 
excepted  to,  and  in  his  brief  argues  Avcre  objectionable  on  the 
alleged  ground  they  were  leading  and  suggestive.     The  court 


f^'m 


456 


AMERICAN  CRIMINAL  REPORTS. 


i  i!! 


also  propounded  a  number  of  questions  to  the  plaintiff  in  error 
on  cross-examination.  The  ground  of  the  objections  and  the 
exceptions  to  these  questions  do  not  appear  from  the  bill  of  ex- 
ceptions, but  the  argument  of  counsel  for  plaintiff  in  error  in 
support  of  the  obiections  is,  "the  questions  were  leading,  and 
that  the  tone  and  manner  of  the  court  when  making  the  inter- 
rogations to  all  the  witnesses  was  prejudicial,  and  the  course 
pursued  by  the  court  in  examining  at  length  so  many  witnesses 
was  unusual  and  tended  to  the  injury  of  his  cause." 

It  is  within  the  power  of  the  court  to  propound  pertinent 
and  properly  framed  questions  to  a  witness.  The  exercise  of 
the  power,  if  the  questions  propounded  by  the  court  are  directed 
to  cnicial  points  of  the  case,  is  most  likely  to  arouse  the  serious 
apprehension  of  the  one  or  the  other  of  the  parties,  and  certainly 
places  counsel  in  a  situation  of  great  embarrassment  if  they  con- 
ceive a  question  asked  by  the  court  is  leading  and  suggestive  in 
form  or  improper  for  any  cause.  It  is  a  task  of  great  delicacy 
and  much  difficulty  for  a  presiding  judge  to  so  conduct  the  ex- 
amination of  a  witness  that  nothing,  in  either  the  tone  or  in- 
flection of  the  voice,  the  play  of  the  features,  the  manner  of 
propounding  or  framing  the  question,  or  the  course  of  investi- 
gation pursued  in  tho  examination,  will  indicate  to  the  jury  the 
trend  of  the  mind  of  the  questioner.  An  extended  examination 
of  a  witness  by  the  court  must  be  unfair  unless  it  partakes 
partly  of  the  nature  of  a  cross-examination,  and,  though  great 
skill  and  tact  and  perfect  fairness  be  employed,  there  is  much 
danger  the  impression  or  opinion  of  the  court  as  to  the  truthfid- 
ness,  candor,  and  reliability  of  the  witness  and  as  to  the  weight 
and  value  of  his  testimony  will  be  manifested  to  the  jury. 
Though  at  times  the  court  may,  by  an  opjjortune  and  carefully 
considered  question,  elucidate  a  point,  aid  an  embarrassed  wit- 
ness, or  facilitate  the  progress  of  a  trial  without  in  any  degree 
influencing  the  jurj'  or  arousing  distrust  in  the  minds  of  the 
parties  or  their  attorneys,  yet  the  examination  of  witnesses  is 
the  more  appropriate  function  of  counsel,  and  it  is  believed 
the  instances  are  rare  and  the  conditions  exceptional  in  a  high 
degree  which  will  justify  the  presiding  judge  in  entering  upon 
and  conducting  an  extended  examination  of  a  witness,  and  that 
the  exercise  of  a  sound  discretion  will  seldom  deem  such  action 


DUNN  V.  PEOPLE. 


457 


error 
ul  tlio 
of  cx- 
ror  in 
r,  and 
intor- 
'011  rse 
nesses 


necessary  or  advisable.  We  must,  however,  decline  to  consult 
the  record  or  consider  the  form  of  the  questions  excepted  to  in 
order  to  determine  whether  they  are  leading  or  suggestive,  as 
claimed,  for  the  reason  the  objections  made  to  the  questions  did 
not  specify  the  grounds  thereof,  being  only  general  in  character. 

The  observation  of  the  judge  made  in  the  presence  and  hear- 
ing of  the  jury  when  ruling  that  it  was  not  competent  to  per- 
mit the  plaintiff  in  error  to  testify  to  conversations  alleged  to 
have  been  had  with  the  deceased,  in  which  plaintiff  in  error  con- 
tended that  the  deceased  made  statements  contradictory  to  the 
alleged  dying  statements,  was  manifestly  prejudicial  to  the 
cause  of  the  plaintiff  in  error.  The  jury  could  but  imply  from 
the  remarks  of  the  court  that  it  was  the  opinion  of  the  court 
the  testimony  of  the  plaintiff  in  error  (which  was  after^vards 
admitted)  that  the  deceased  had  made  such  alleged  statements 
in  a  conversation  with  him  were  but  the  conceptions  of  the  fer- 
tile mind  of  the  plaintiff  in  error,  and  consequently  had  no 
basis  in  truth  or  in  fact,  and  it  may  well  be  feared  the  jury 
would  further  imply  that  in  the  opinion  of  the  court  the  plaint- 
iff in  error  was  presenting  a  fabricated  defense  throughout. 
The  plaintiff  in  error  was  a  competent  witness,  and  the  jury 
were  the  sole  judges  of  the  weight  and  credit  which  ought  to 
be  given  to  his  testimony.  lie  was  entitled  to  a  decision  by  the 
jury  on  tiie  facts,  uninfluenced  by  the  opinion  of  the  judge.  In 
Andreas  r.  Kdcham,'77  111.  377,  we  said  (page  379):  "The 
opinion  of  the  judge,  given,  as  it  was,  before  the  jury,  upon  a 
<[iie.stion  of  fact  which  was  controverted,  could  not  do  otherwise 
than  prejudice  the  jury  against  appellants.  The  laws  guariinty 
to  all  a  fair  and  impartial  trial,  and  courts  are  oi'ganized  for 
the  purpose  of  seeing  that  the  laws  are  administered  in  such  a 
manner  that  justice  will  be  done  to  all.  In  cases  where  the  jury 
have  the  sole  power  to  determine  questions  of  fact  from  the 
evidence,  the  law  cannot  be  properly  administered  and  justice 
done  parties  in  litigation  if  the  judge  presiding,  after  the  evi- 
dence is  closed,  gives  to  the  jury  his  own  opinion  on  a  question 
of  fact." 

"We  think  the  court  erred  also  in  its  rulings  upon  the  instruc- 
tions asked  and  given  on  behalf  of  the  People.  The  indictment 
contained  five  counts.  '  The  charge  in  the  first  and  third  is  that 


II 
ii2'y:i 


' 


!l    I 


458 


AMERICAN  CRIMINAL  REPORTS. 


the  abortion  and  death  were  produced  by  the  use  of  calomel, 
and  in  the  second  and  fourth  it  is  alleged  that  a  noxious  drug, 
the  name  whereof  was  unknown  to  the  jurors,  was  used,  and  tho 
charge  of  the  fifth  count  is  that  the  abortion  was  accomplished 
"by  divers  means  then  and  there  by  the  said  James  A.  Dunn 
used  and  employed,  the  name  and  character  of  which  divers 
means  are  to  the  jurors  unknown."  There  was  no  proof  tend- 
ing to  show  any  drug  other  than  calomel  was  used.  The  only 
proof  that  plaintiff  in  error  furnished  calomel  to  the  deceased 
consisted,  as  we  have  hereinbefore  said,  of  the  alleged  dying 
declaration  of  the  deceased.  The  plaintiff  in  error  was  engaged 
in  business  as  a  retail  merchant  in  the  village  v'  I^ebo,  and 
in  connection  therewith  drove  a  trading  or  huckster's  Avagon 
through  the  country  in  the  vicinity  of  Nobo  at  regular  intervals. 
The  deceased  had  her  home  with  her  mother,  about  three  miles 
east  of  Xebo.  Her  dying  declarations  were  that  plaintiff  in 
error,  Avhile  on  one  of  his  trading  trips  on  the  2d  day  of  July, 
189G,  late  in  the  afternoon  of  that  day,  stopped  at  a  gate  which 
led  from  the  public  road  to  the  home  of  the  deceased,  and  then 
and  there  gave  her  a  package  oi  calomel,  and  directed  her  to  take 
ic  in  certain  specified  doses,  and  assured  lier  it  would  produce  a 
miscarriage;  that  she  took  the  drug  as  directed;  and  that  an 
abortion  and  her  fatal  illness  followed.  Tbere  Avas  no  proof, 
nor  any  attempt  to  prove,  that  the  plaintiff  in  error  used  or  at- 
tempted to  use  any  other  drug  than  calomel,  or  that  he  furnished 
any  calomel  at  any  other  time  or  place  than  on  the  afternoon 
of  the  said  2d  day  of  July  in  the  i)ublic  road  near  the  said  gate, 
and  there  was  no  proof  Avhatever  that  he  endeavored  to  accom- 
plish the  abortion  by  any  other  means,  of  any  nature  or  char- 
acter, other  than  by  the  alleged  use  of  said  calomel,  or  that  he  in 
any  other  Avay  than  that  aided,  advised,  or  encouraged  the  said 
deceased  to  bring  about  the  miscarriage. 

The  plaintiff  in  error  testified  that  when  making  the  said 
trading  trip  on  the  said  2d  day  of  July  he  passed  along  tho 
public  road  and  by  the  said  gate  about  ten  o'clock  in  tlie  morn- 
ing, and  that  he  did  not  see  or  spesik  to  the  said  deceasoil.  and 
did  not,  on  that  or  any  other  clay,  furnish  any  calomel  to  her ; 
that  he  was  accompanied  on  the  said  2d  day  of  July,  while  pass- 
ing along  said  road  and  by  said  gate,  by  one  !Miss  ]\[aude  Smith ; 


'e» 


'fe"8^ 


and 


DUNN  V.  PEOPLE. 


459 


and  that  tliey  drove  along  said  public  road  to  his  place  of  busi- 
ness, in  the  town  of  Nebo,  and  that  he  remained  in  his  place  of 
business  and  said  village  of  Nebo  during  the  remainder  of  that 
day  and  all  of  the  evening  of  that  day.  The  said  Miss  Smith 
was  produced  as  a  witness  and  her  testimony  fully  corroborated 
that  of  the  plaintiff  in  error.  In  addition  to  this,  Van  Pinker- 
ton  and  Mrs.  Van  Pinkerton  testified  that  Miss  Maude  Smith 
accompanied  plaintiff  in  error  on  that  trip,  and  that  they  both 
returned  to  the  store  at  Xebo  from  the  said  trading  trip,  on  the 
said  2d  day  of  July,  about  the  hour  of  twelve  on  that  day,  and 
that  the  plaintiff  in  error  remained  at  his  home  and  in  the 
store  the  remainder  of  the  afternoon  and  evening  of  that  day. 
In  rebuttal  the  People  produced  John  and  Lawrence  Springer 
and  Alfonso  Couch,  who  testified  they  saw  the  plaintiff  in  error 
driving  his  trading  wagon  on  the  public  road  in  front  of  the 
gate  Avhich  led  to  the  home  of  the  deceased,  on  the  said  2d  day 
of  July,  and  that  he  stopped  at  the  gate,  and  there  met  the  de- 
ceased, and  that  plaintiff  in  error  and  the  deceased  engaged  in 
a  conversation  there,  and  that  plaintiff  in  error  remained  there 
for  about  forty  minutes.  This  conflict  of  testimony  presented 
to  the  jury  for  thoir  determination  a  question  of  fact  materially 
iiffeeting  the  guilt  or  innocence  of  the  accused.  It  was  essential 
to  the  conviction  of  the  plaintiff  in  en*or,  as  the  case  was  pi*e- 
sonted  by  the  evidence,  the  jury  should  find  the  plaintiff  in 
error  supplied  the  deceased  with  calomel,  as  she  in  her  dying 
declarations  declared  he  had  done,  and  that  her  death  resulted 
from  the  use  of  that  drug.  The  record  is  barren  of  proof  tend- 
ing ti»  show  that  plaintiff  in  error  conti.buted  to  her  death  by 
any  other  manner  or  means  or  otherwise  aided  or  abetted 
therein,  yet  the  court  gave  to  the  jury  the  following  instnic- 
tions : 

"(27)  Even  though  you  may  believe  from  the  evidence  that 
the  defendant  did  not,  by  his  own  hand  and  act,  produce  the 
abortion  charged,  if  you  believe,  froni  the  evidence,  beyond  a 
reasonable  doubt,  that  the  same  Avas  so  produced  as  charged  in 
the  indictment,  vet  if  vou  do  believe  from  the  evidence,  bevond 
a  reasonable  doubt,  that  the  same  was  committed  by  some  per- 
son in  manner  and  form  as  charged  in  the  indictment,  and  if 
you  further  believe  from  the  evidence,  beyond  a  reasonalilo 


460 


AMERICAN  CRIMINAL  REPORTa 


doubt,  that  the  person  so  comniitting  it  (if  the  evidence  so 
shows,  beyond  a  reasonable  doubt,  ■whether  it  was  Cora  Alice 
Grimes  herself  or  another)  was  advised,  encouraged,  and  in- 
duced by  the  defendant  to  so  commit  it,  and  if  you  further  be- 
lieve from  the  evidence,  Ixjyond  a  reasonable  doubt,  that  the 
death  of  Cora  Alice  Grimes  was  thereby  occasioned  and  caused 
as  charged  in  the  indictment,  then,  if  you  find  the  facts  as  last 
above  stated,  it  would  be  your  duty  to  find  the  defendant 
guilty." 

*'(45)  If  you  believe  from  the  evidence,  beyond  a  reasonable 
doubt,  that  the  defendant  did,  in  manner  and  form  as  charged, 
either  by  word,  act,  gesture,  sign,  or  otherwise,  intentionally 
cause  or  induce,  aid,  advise,  or  encourage  said  Cora  Alice 
Grimes  to  produce  the  abortion  in  manner  and  form  as  charged 
in  the  indictment,  and  tiiat  such  abortion,  if  the  evidence  shows 
it  beyond  a  reasonable  doubt,  resulted  in  and  caused  the  death 
of  Cora  Alice  Grimes,  in  manner  and  form  as  charged,  you 
should  find  the  defendant  guilty." 

The  effect  of  these  instnictions  was  to  relieve  the  jury  from 
the  ditlicult  task  of  determining  the  truth  as  to  the  controverted 
question  whether  the  plaintiff  in  error  supplied  the  deceased 
with  calomel,  and  thus  brought  about  the  miscarriage  and  her 
subsequent  death,  and  to  invite  them  to  return  a  verdict  finding 
the  plaintiff  in  error  guilty  though  they  were  unable  to  deter- 
mine whether  he  supplied  her  with  calomel,  and,  even  if  they 
believed  some  person  other  than  the  plaintiff  in  error  "commit- 
ted" the  abortion  by  any  means,  if,  upon  a  general  view  of  the 
whole  case,  the  jury  entertained  the  belief  that  the  plaintiff  in 
error  had  advised,  encouraged,  or  aided  and  abetted  the  perpe- 
tration of  the  alleged  crime.  When  it  is  remembered  there  was 
evidence  tending  to  show  the  plaintiff  in  error  had  had  sexual 
intercourse  with  the  deceased,  and  tending  to  show  she  became 
pregnant  and  aborted  the  foetus,  the  vice  of  these  instnictions 
becomes  manifest.  They  might  well  be  understood  by  the  jury 
to  suggest  that  suspicions  which  naturally  arise  from  proof  of 
the  existence  of  a  motive  to  commit  the  crime  would  justify  the 
conclusion  tlie  party  having  such  motive  had  by  some  "word, 
act,  gesture,  sign,"  or  in  some  other  manner,  aided  or  abetted  in 
the  perpetration  of  the  offense. 


GRIFFIN  V.  STATE. 


401 


Plaintiff  in  error  has  assigned,  and  his  counsel  in  their  brief 
have  argued,  other  alleged  errors,  but  it  does  not  seem  necessary 
\vc  should  extend  this  opinion  b}-  reference  thereto.  For  the 
reasons  indicated  we  think  the  plaintiff  in  error  did  not  have 
that  fair  and  impartial  trial  to  which  he  was  entitled  by  the  law 
of  the  land.  The  judgment  of  conviction  is  reversed,  and  the 
cause  remanded.    Eeversed  and  remanded. 


Gkiffin  v.  State. 

40  Tex.  Crira.  Rep.  312—50  S.  W.  Rep.  366. 

Decided  March  15,  1899. 

Homicide:    Declarations   part   of  res   gestw — Improper  questions — In- 
structions— Weapon. 

1.  The  proximate  cause  of  death  being  a  blow  on  the  head,  it  is  im- 

material that  death  would  probably  not  have  ensued  had  not  de- 
ceased's brain  been  inflamed  from  the  use  of  intoxicating  liquor. 

2.  Expressions  of  regret,  with  surprise  at  the  result  of  the  fatal  blow, 

made  by  defendant  within  a  few  minutes  after  the  blow,  before 
the  defendant  had  left  the  scene  and  while  still  under  excite- 
ment, are  part  of  the  res  gestw,  and  should  have  been  admitted  in 
evidence. 

3.  The  error  in  excluding  such  testimony  was  not  cured  by  a  similar 

expression  from  the  defendant  while  ou  the  witness  stand. 

4.  It  is  improper,  although  not  always  reversible  error,  for  the  prose- 

cuting attorney  to  ask  manifestly  irrelevant  questions. 

5.  Where  from  the  evidence  it  appeared  that  the  homicide  was  the 

result  of  a  sudden  difficulty,  in  which  the  deceased  was  aggres- 
sive, and  in  which  the  fatal  blow  was  struck  with  an  article,  in 
its  ordinary  use,  not  deadly,  it  is  error  to  charge  the  jury  that 
"Where  the  circumstances  attending  a  homicide  show  evil  or 
cruel  disposition,  or  that  it  was  the  design  of  the  person  offend- 
ing to  kill,  he  is  deemed  guilty  of  murder  or  manslaughter,  ac- 
cording to  the  other  facts  in  the  case,  though  the  instrument  or 
means  used  may  not,  in  their  nature,  be  such  as  to  produce  death 
ordinarily;"  but  the  court  should  have  charged  that,  if  the  jury 
believe  that  the  weapon  used  was  not  likely  to  produce  death, 
they  could  not  presume  that  death  was  designed. 

Appeal  from  the  Victoria  County  District  Court;  Hon. 
James  C  Wilson,  Judge. 

John  Griffin,  convicted  of  murder  in  the  second  degree,  ap- 
peals.   Keversed. 

Roht.  A.  John,  Asst.  Atty.  Gen.,  for  the  State. 


[1 


I 


I    ii: 


li 


p  i 


|ii  i 

t.:l        ! 


'it        ■■    I 


I    ! 


402 


AMERICAN  CRTMINAL  REPORTS. 


IIexderson',  J.  Appellant  was  convicted  of  murdor  in  the 
second  degree,  and  his  punishment  assessed  at  coniinonicnt  in 
the  penitentiary  for  a  term  of  six  years,  and  he  appeals. 

The  homicide  occurred  a  few  miles  from  the  town  of  Vic- 
toria, at  the  saloon  'of  Otto  Ficks.  It  does  not  appear  that  there 
was  any  former  gnidge  between  the  parties,  and  the  meeting 
at  this  saloon  was  casual.  A  few  weeks  before  the  ditficiilty, 
deceased,  Mauritz  Ilanboldt,  lost  his  hat,  and  appellant  found 
it.  When  they  met  in  the  saloon  of  Fieks,  appellant  asked  do- 
ceased  to  give  him  a  beer  for  finding  ^lis  hat.  Deceased  in- 
formed him  that  he  had  already  given  a  beer  for  that,  and  de- 
clined to  give  him  another.  The  State's  witnesses  show  that  ap- 
pellant immediately  became  boisterous,  and  used  profane  and 
abusive  language.  Defendant's  witnesses,  however,  deny  this. 
All  a^ee  that  he  immediately  returned  from  the  table  where 
deceased  was  sitting,  with  another  person,  to  the  bar  counter 
of  the  saloon,  to  drink  a  glass  of  beer.  Deceased  got  up,  and 
told  appellant,  "to  come  here ;  he  wanted  to  tell  him  something." 
Appellant  came  to  him,  and  deceased  took  hold  of  him,  and  led 
him  towards  the  door  of  the  saloon,  and  appellant  asked  him 
what  he  wanted.  He  told  him  he  wanted  to  show  him  some- 
thing. Appellant  appears  to  have  pulled  himself  loose  from  do- 
ceased.  Deceased,  who  was  some  stouter  and  heavier  than  ap- 
pellant, then  appears  to  have  gotten  in  behind  appellant;  and, 
according  to  appellant's  witnesses,  shoved  and  kicked  hiin  out 
of  the  saloon  door,  deceased  having  his  glass  of  beer  in  his  i-" 
Some  of  the  State's  witnesses  say  that  they  did  not  see  this  ;  • 
ceased's  wife,  who  was  on  the  outside,  and  a  few  yards  fro:  e 
saloon,  sitting  in  a  buggy,  waiting  for  her  husband,  states  that 
after  appellant  got  out  of  the  saloon  she  saw  him  pour  the  boor 
out  of  his  glass,  and  then  turned,  and  threw  it.  Other  wit- 
nesses testify  that  the  beer  was  not  poured  out  of  the  glass,  but 
the  glass  was  thrown  with  the  boor  in  it.  It  struck  dooeasod  in 
the  head,  a  little  above  the  left  ear,  and  he  fell  on  the  saloon 
floor.  In  a  short  time  ho  struggled  to  his  feet,  ran  out  of  the 
saloon  into  a  little  field  near  by,  was  caught  by  his  friends, 
and  brought  back,  placed  in  the  bugg^',  and  carried  to  the  house 
of  Fieks,  where  he  died,  from  the  effects  of  the  wound,  alx)ut 
twelve  or  one  o'clock  that  night.    Appellant,  after  he  struck  de- 


GRIFFIN  V.  STATE. 


403 


ceased,  returned  to  the  saloon;  and  there  is  some  controversy 
ns  to  whether  he  attempted  again  to  assault  deceased,  some  of 
tlio  witnesses  testifying  that  he  did  and  others  that  he  did  not. 
lie  picked  up  some  small  weights  that  were  near  by,  and  went 
out  of  the  saloon  at  another  door,  and  in  a  short  time  went  to 
a  wagon  near  the  saloon,  and,  with  other  parties,  left.  lie  sur- 
rendered to  the  sheriff  the  next  day.  "We  would  observe  that 
the  witnesses  who  describe  the  wound  state  that  there  was  no 
blood  or  break  of  the  outer  skin ;  that  the  wound  showed  in  the 
shape  of  a  half  circle,  as  if  inflicted  with  the  bottom  of  a  beer 
glass.  The  skull  was  not  exposed,  but  from  a  superficial  exam- 
ination of  the  wound  the  physicians  testified  that  the  skull  was 
fractured,  and  that  the  blow  caused  the  death  of  deceased. 

Appellant  proposed  to  prove  that  deceased  was  addicted  to 
the  excessive  use  of  alcoholic  liquors,  and  was  beastly  and  help- 
lessly drunk  two  days  before  the  killing,  lie  states  that  this 
evidence  was  offered  for  the  purpose  and  as  preliminary  to  the 
testimony  of  Dr.  Rape,  who  attended  the  deceased  at  the  time 
of  his  death ;  and  that  he  proposed  to  prove  by  him  that,  but  for 
the  inflamed  condition  of  the  brain,  the  blow  inflicted  would 
not  have  caused  the  death  of  deceased.  The  court  explains  this 
by  stating  that  Dr.  Rape  testified  in  the  case,  and  did  not  tes- 
tify as  stated  in  the  bill  of  exceptions.  The  testimony,  as  of- 
fered, was  excluded.  In  this  we  see  no  error.  Even  if  the 
testimony  of  Dr.  Rape  had  been  to  the  effect  that,  but  for  the 
diseased  condition  of  the  brain,  death  might  not  have  resulted 
from  the  blow,  still  there  would  have  been  no  er.or  in  rejecting 
said  testimony.  The  blow  was  the  proximate  cause  of  the  death 
of  deceased,  and  the  enfeebled  condition  of  deceased  at  the  time 
would  not  be  material.  There  was  no  suggestion  here  of  any 
gross  negligence  on  the  part  of  deceased  after  receiving  the 
blow,  or  of  his  attendants. 

Appellant  offered  to  prove  by  Wes  Brown  and  Matthew 
Wyatt,  who  were  present  at  the  homicide,  that  they  were  at  the 
wagon  in  which  defendant  and  themselves  left  the  scene  of  the 
difficulty;  that,  immediately  upon  defendant  leaving  the  house 
Avhcre  the  blow  was  struck,  he  came  to  the  wagon,  and  said  to 
them :  "I  hope  I  haven't  hurt  him  much.  I  did  not  think  the 
glass  was  heavy  enough  to  knock  him  down.    I  just  wanted  to 


•  i 


i 


4GJ: 


AMERICAN  CRIMINAL  REPORTS. 


m  \ 


h       ):, 


h 


keep  him  from  kicking  me  any  more."  This  was  within  five 
or  six  minutes  after  the  blow  had  been  struck,  and  while  de- 
fendant was  still  very  much  excited  and  frightened  from  tho 
difficulty,  and  while  the  people  in  the  house  were  surrounding 
deceased.  The  State  objected  to  this,  because  it  was  not  res 
fjestte,  but  merely  self-serving.  The  court,  in  his  explanation  to 
this  bill,  in  refusing  to  admit  the  testimony,  states  that  the  dec- 
laration of  defendant  was  made  five  or  ten  minutes  after  tb.o 
difficulty,  and  after  defendant  had  walked  from  the  house  to 
the  wagon  in  the  road,  and  after  the  wagon  had  been  driven 
thirty  or  forty  yards.  Defendant  and  Wes  Brown  got  into  tho 
wagon  with  tho  witness  Matthew  Wyatt,  and  "hat  it  was  ten  or 
fifteen  minu^^es  after  the  difficulty  when  defendant  made  said 
statement.  Appellant  further  proposed  to  prove  by  himself  the 
siime  expressions  in  regard  to  the  difficulty  as  above  set  out,  and 
that  he  was  at  the  time  very  much  excited  and  frightened  from 
the  difficulty,  and  that  the  wagon  was  not  more  than  thirty  feet 
from  the  house;  and  these  were  the  first  people  he  had  men- 
tioned the  matter  to ;  that  this  was  about  five  minutes,  or  les^, 
after  the  blow  had  been  struck.  This  was  objected  to  on  the 
same  ground,  and  the  court  appended  to  this  bill  no  explana- 
tion. We  are  inclined  to  the  view  that  this  testimony  was  res 
fjesia^,  and  was  admissible  as  such.  In  point  of  time  it  was  very 
close  to  the  difficulty.  Appellant  does  not  appear  to  have  been 
engaged  in  any  other  matter,  nor  to  have  indulged  in  any  con- 
versation about  any  other  subject.  Almost  immediately  after 
the  fatal  blow  was  struck  by  him,  and  while  he  was  still  excited, 
before  he  left  the  place,  he  made  the  statement  which  was  ex- 
cluded. It  does  not  occur  to  us  that  there  was  time  for  fabrica- 
tion, nor  is  there  any  circumstance  indicating  that  the  state- 
ment was  not  the  spontaneous  expression  of  the  witness  (defend- 
ant), springing  out  of  the  transaction.  Smith  v.  Slate,  21  Tex. 
Crim.  App.  277,  17  S.  W.  Rep.  471 ;  Fukher  v.  State,  28  Tex. 
Crim.  App.  4(55,  13  S.  W.  Rep.  758 ;  Chalk  v.  State,  35  Tex. 
Crim.  Rep.  116,  32  S.  W.  Rep.  534;  Underh.  Crim.  Ev.,  §  95 
et  seq.  True,  appellant,  in  his  testimony,  stated  these  facts, 
but  his  evidence  on  this  point  was  not  given  in  as  res  gcsfa?,  but 
the  mere  statement  of  the  fact,  long  after  the  homicide,  after 
time  for  deliberation ;  and,  of  course,  such  testimony  would  not 


GRIFFIN  V.  STATE. 


4C5 


have  the  same  force  ami  effect  with  the  jury  as  if  it  was  a  part 
and  parcel  of  the  transaction,  sp'  inging  out  of  it  at  the  time. 
It  appears  a  small  matter  that  he  Avas  deprived  of  ihj.  testi- 
mony, yet  it  was  a  right  to  which  he  was  entitled ;  and  we  can- 
not tell  what  effect  its  admission  may  have  had  with  the  jury. 

Appellant,  by  his  bill  of  exceptions  Xo.  5,  questions  the  ac- 
tion of  the  court  permitting  the  district  attorney  to  ask  certain 
questions,  suggesting  that  one  Frank  Jones  had  robbed  deceased 
a  short  while  before  the  homicide,  and  that  said  Jones  was  a 
cousin  of  defendant.  This  testimony  was  not  admitted  by  the 
court,  but  the  complaint  is  that  the  asking  of  the  question,  under 
the  circumstances,  was  calculated  to  injuriously  affect  the  de- 
fendant with  the  jury.  We  believe  that  the  testimony  was 
clearly  inadmissible,  and  that  the  questions  calculated  to  elicit 
it  were  obviously  improper,  and  should  not  have  been  asked. 
While  this  is  tnie,  wo  would  not  be  willing  to  reverse  the  judg- 
ment alone  on  this  ground. 

Appellant  excepted  to  the  action  of  the  court  in  giving  the 
following  ciiarge:  "Where  the  circumstances  attending  the  hom- 
icide show  evil  or  cniel  disposition,  or  that  it  was  the  design  of 
the  person  offending  to  kill,  he  is  deemed  guilty  of  murder  or 
manslaughter,  according  to  the  other  facts  of  the  case,  though 
the  instrument  or  means  used  may  not,  in  their  nature,  be  such 
as  to  produce  death  ordinarily."  This  was  objected  to,  and 
the  charge  was  also  objected  to  because  the  court  erred  in  not 
charging  the  jury  fully  on  the  question  of  his  intent  to  kill  de- 
ceased. We  do  not  see,  in  this  case,  any  evidence  that  the  homi- 
cide was  inflicted  in  a  criiel  manner,  or  under  circumstances 
showing  an  evil  or  cruel  disposition.  It  was  a  sudden  quarrel, 
in  which  it  appears  that  deceased  struck  the  first  blow.  He 
shoved  and  kicked  defendant  out  of  the  saloon.  The  defendant 
immediately  turned,  and  threw  a  beer  glass,  which  he  had  in 
his  hand,  at  the  deceased,  striking  him  on  the  head,  inflicting  a 
wound  from  which  he  died.  This  was  what  occurred,  and  we 
fail  to  see  in  the  testimony  any  evidence  indicating  an  evil  or 
cruel  disposition,  imless  any  killing  which  may  occur  in  a  casual 
difficulty  indicates  such  cruel  or  evil  disposition.  We  do  not 
believe  the  court  should  have  charged  on  this  subject.    The  real 

keynote  in  this  case  was  appellant's  intention  to  kill.    The  court 
Vol.  XI  — 30 


w,w 


i' 


I'! 


400 


AMERICAN  CRIMINAL  REPORTa 


pave  in  clinrp^o  to  tlic  jury  article  717,  Penal  Coilo,  on  this  sub- 
joet,  l>ut  we  believe  the  learneil  jiKlj^'e  should  have  proceeded 
further  than  merely  to  give  the  statute  in  the  al>8tract  form, 
and  should  have  applied  the  law  embodied  in  such  statute  to 
the  facts  of  this  case,  and  instructed  the  jury  pointedly  that, 
if  they  believed  the  wcai)on  used  was  not  likely  to  produce 
death,  the  jury  could  not  presume  that  death  was  desinueil ; 
and  that,  before  they  could  convict  appellant  of  either  murder 
or  manslaughter,  they  must  believe,  from  the  manner  in  which 
said  weapon  was  used,  it  was  evidently  intended  by  np])ellant 
to  take  the  life  of  deceased.  Shaw  v.  State,  34  Tex.  Crip.i.  Hep. 
435,  31  S.  W.  Rep.  301;  Iloncywcll  v.  State,  ante,  p.  193.  Wo 
furthermore  believe  that  the  court's  charge  on  manslaughter 
shouUl  have  been  directly  addressed  to  the  facts  proved.  The 
statute  makes  an  assault  inflicting  pain  or  bloodshed  adequate 
cause.  The  evidence  here  showed  that  deceased  did  assault  a])- 
pellant  by  shoving  and  kicking  him  out  of  the  saloon.  The 
court  charged  generally  that  anything  which  was  adequate 
cause  to  produce  anger,  etc.,  was  adequate  cause;  but  the  salient 
fact  in  this  case  suggesting  adequate  cause, was  the  assault  of 
deceased  on  a]q>ellant,  and  the  court  should  have  predicated  a 
charge  of  manslaughter  on  the  facts  proved  on  this  subject. 
Fcir  the  errors  discussed,  the  judgment  ia  reversed,  and  the 
cause  remanded. 


I 


I 


! 


Davidson,  P.  J.,  absent. 


*^     Sjf  l! 


State  v.  Prude. 

76  Miss.  543—24  So.  Rep.  871. 

Decided  January  23,  1899. 

Homicide:    Construction  of  statute — Unborn  child. 

1.  At  common  law  an  unborn  child  was  not  a  subject  of  homicide. 

2.  An  indictment,  to  come  within  the  provisions  of  section  1157  of  the 

Code  of  1892,  should  show  that  the  means  used  were  such  as  are 
by  that  section  declared  unlawful. 

3.  Section  1157  of  the  Code  of  1892  does  not  apply  to  an  act  done  by 

the  mother  of  an  unborn  child. 


STATE  V.  PRUDE. 


4GT 


Appeal  from  tlio  Circuit  Court  of  Pontotoc  County;  Hun. 
Eurfone  O.  Sykca,  Judge. 

Emnm  Prude  was  indictf^d,  and,  a  domurror  to  tlie  indict- 
niont  having  been  sustained,  tie  State  appeals.     AlfiniUMl. 

((^opv  of  section  IIT)?  of  Cr'.'ic  of  1892:)  Every  jHTson  who 
shall  administer  to  any  v.Muian  pregnant  with  a  quick  child 
any  medicine,  drug,  or  substance  wliatever,  or  shall  use  or  em- 
plov  anv  instrument  or  other  means,  with  intent  ihcrcliv  to  dc- 
stroy  such  child,  and  shall  theroI)y  destroy  it,  shall  be  guilty  of 
manslaughter,  unless  the  same  shall  have  been  necessary  to  pre- 
s('r\e  the  life  of  the  mother  or  shall  have  been  advised  by  a  phy- 
sician to  be  necessary  for  such  purpose. 

Wiley  N.  Nash,  Atty.  Gen.,  for  the  State. 
Ko  appearance  for  the  appellee. 

Tkrkat,,  J.  The  appellee  was  indicted  for  that  she  '*did  fe- 
loniously kill  and  slay  an  unborn  quick  child  of  said  Emma 
Prude,"  etc.  The  defendant  demurred  to  the  indictnient.  The 
court  sustained  the  demurrer  and  the  State  appeals. 

Tliis  is  not  a  good  indictment  at  common  law,  for,  by  the 
conunon  law,  "An  infant  in  the  mother's  womb,  not  being  in 
rcium  nalura,  is  not  considered  as  a  person  who  can  be  killed 
within  the  description  of  murder,  and,  therefore,  if  a  woman, 
being  quick  or  great  with  child,  take  any  potion  to  cause  an 
abortion,  or  if  another  give  her  any  such  potion,  or  if  a  person 
strike  her,  Avhereby  the  child  within  her  is  killed,  it  is  not  nmr- 
der  or  manslaughter."  3  Russell  on  Crimes  (International  ed.), 
6;  Wharton  on  Ilom.  (2d  ed.),  sec.  303;  Wharton's  Am.  Crim. 
Law  (Gtli  cd.),  sec.  942;  McClain  on  Crim.  Law,  sec.  294; 
Ahams  v.  Foshce,  GG  Am.  Dec.  91,  note. 

The  indictment,  obviously,  is  not  drawn  under  §  1157,  Code 
of  1892,  because  the  administration  of  some  medicine,  drug  or 
substance,  or  the  use  of  some  instrument,  with  intent  to  destroy 
the  unborn  quick  child,  is  not  alleged  therein,  and  because  the 
taking  of  any  substance  or  the  use  of  any  instrument  by  the 
pregnant  woman  herself  with  intent  to  destroy  the  child  in 
her  womb  is  not  conveyed  by  said  section.  Bishop  on  Stat.  Cr. 
(2d  ed.),  sees.  747,  749.    Affirmed. 


II 


4CS 


AMERICAN  CRIMINAL  REPORTS. 


'Ml      II 


P  !  ' 


i 


1 


i 
I 


i 


t  II I 


Common wKAi.Tir  v.  Farhkix. 

187  Pa.  St.  408—41  Atl.  Rep.  382. 

Deiided  October  17,  1898. 

HoMirtDE;   Expert  evidence  —  Former  attempt  and  threats  —  Instruc- 
tluna — Private  detective's  interest — Weight  of  the  evidence. 

1.  Expert  witnesses  are  those  possessing  knowledge,  skill  or  experi- 

ence needed  to  Inform  and  guide  the  court  and  Jury  in  the  par- 
ticular case;  and  the  question  being  investigated  should  be  one 
requiring  the  aid  of  such  evidence. 

2.  Exi)ert  evidence  not  necessary  to  identify  stitches  in  an  old  pocket- 

book  as  having  been  made  by  the  same  person  who  stitched  up 
another  old  pocketbook. 

3.  An  undertaker's  assistant  not  competent  as  an  expert  witness  as 

to  when  rigor  mortis  may  have  set  in,  especially  when  it  did  not 
oppear  that  his  attention  had  been  specially  directed  in  that  line 
of  observation. 

4.  Erroneous  instruction,  attaching  too  much  Importance  to  the  evi- 

dence of  an  alleged  accomplice  1:>  a  prior  attempt  to  rob  deceased, 
and  to  threats;  and,  although  the  jury  was  advised  not  to  be 
unduly  prejudiced  thereby,  yet  the  tenor  of  the  Instruction  was 
that  such  facts  raised  a  probability  of  guilt. 

6.  Instruction  erroneous,  in  apparently  assuming  the  identity  of  the 
old  pocketbook  found  six  months  after,  from  having  been  mended 
with  a  common  brand  of  thread  with  which  a  pocketbook  of  the 
deceased  was  alleged  to  have  been  mended;  which  evidence,  in  the 
opinion  of  the  court,  was  tinged  with  an  air  of  both  improbabil- 
ity and  suspicion. 

6.  The  defendant  had  the  right  to  cross-examine  a  detective-witnesa 
of  a  detective  agency  as  to  the  amounts  and  conditions  of  re- 
muneration his  ogency  was  to  receive  from  the  county  employing 
it, — whether  it  was  working  for  a  fixed  price  or  a  conditional  one 
dependent  upon  conviction,  and  the  like, — as  having  a  bearing 
upon  the  interest,  feeling,  and  credibility  of  the  detectives  in  the 
matter,  and  it  was  error  not  to  allow  such  cross-examination. 

Jainos  Farrell,  convicted  of  murder  in  tlio  first  degree,  in 
court  of  O.  &  T.  Blair  county,  appeals.    Reversed. 

JR.  A.  Henderson,  for  the  appellant. 

^YiUiam  S.  Hammond,  District  Attorney,  for  the  Common- 
wealth. 

Williams,  J.  The  indictment  in  this  case  charges  three 
persons  with  the  crime  of  murder  in  the  first  degree,  in  the  kill- 
ing of  one  Henry  Bonnecke.     They  are  the  defendant  Frank 


COMMONWEALTH  r.  FAKUHLL. 


4t;'j 


Wilson,  niul  Willinm  Dnrnn.  Wilson  an<l  tlio  (Icfpjiilniit  wero 
sopariitcly  trictl,  nnd  Dorau  has  so  far  osoaiuMl  arrest.  Tlip  trial 
of  Wilson  rcsultctl  in  a  ('<»nvit'tion.  A  new  trial  was  rcfii-ictl, 
nnd  the  case  eanio  into  this  court  hy  ap])oal.  At  the  ^[arch  torni, 
ISOO,  Farroll,  tiu;  defendant,  was  tried  and  convicted.  His 
application  for  a  new  trial  was  refused,  nnd  he  also  appealed. 
The  two  appeals  were  heard  in  this  co\irt  at  the  same  time,  and 
the  proceedings  upon  Wilson's  appeal,  with  the  opinion  of  this 
court,  will  he  found  reported  in  ISO  Pa.  St.  1,  40  Atl.  Hep.  2s2. 
For  a  full  statement  of  the  circiunstances  surrounding  the  mur- 
der, of  the  preparation  of  the  case  of  the  Commonwealth  hy  de- 
tectives, and  the  general  questions  affecting  their  credihility, 
reference  is  made  to  the  case  of  Common  wcallh  v.  Wilson, 
ahove  cited.  This  npj)eal  involves  several  questions  not  raised 
in  that  case,  which  we  will  briefly  consider  in  what  seems  to  ho 
their  natural  order.  The  first  f)f  these  is  raised  hv  the  second, 
third,  nnd  fifth  assignments  of  error,  and  relates  to  the  admis- 
sion of  expert  witnesses.  Two  things  must  concur  to  justify  tho 
admissiini  of  an  exjiert  witness:  First,  the  suhject  under  exam- 
ination must  he  one  that  requires  that  the  court  and  jury  have 
the  aid  of  knowledge  or  exjierienee  such  as  men  not  specially 
skilled  do  not  have,  and  such,  thei-cfore,  as  cann(jt  ho  obtained 
from  ordinary  witnesses;  second,  the  witness  called  as  an  ex- 
pert must  possess  the  knowledge,  skill,  or  experience  needed  to 
inform  and  guide  the  court  and  jury  in  the  particular  case. 
Upon  such  a  (piestion  such  a  witness  may  be  called,  and  may 
testify  not  merely  to  facts,  but  to  his  conclusions  from  the  facts, 
because  the  court  and  jury  are  without  tho  knowledge  neces- 
sary to  enable  them  to  draw  the  conclusions  for  themselves  with- 
out aid.  In  this  case,  an  old  pocketbook,  which  had  been  torn 
and  mended  with  thread  in  a  coarse  and  clumsy  manner,  had 
been  put  in  evidence.  Another  pocketbook,  said  to  have  be- 
longed to  Eonnecke,  which  had  been  repaired  by  what  seemed 
to  be  the  same  sort  of  thread,  was  put  in  evidence  for  the  pui'- 
pose  of  proving  that  the  first  pocketbook  belonged  to  and  had 
been  repaired  by  Bonnecke.  There  was  nothing  peculiar  aboiit 
the  first  pocketbook,  or  the  thread  with  which  it  had  been 
mended,  or  the  stitches  taken  upon  it.  We  can  see  no  question 
of  art  or  skill  raised  hero  upon  which  special  knowledge  was 


470 


AMERICAN  CRIMINAL  REPORTa 


•jf   a 


iiocdetl,  nor  did  the  Avituoss  show  himself  possessed  of  expert 
knowledge,  if  it  had  been  necessary.  The  witness  was  compe- 
tent, as  any  other  witness  would  have  been,  to  testify  to  any 
peculiar  characteristics  of  the  pocketbook,  or  the  thread,  or  the 
stitches,  and  the  jury  could  have  compared  them  at  their  leisure, 
and  determined  the  value  of  the  evidence;  but  to  dignify  the 
testimony  by  treating  it  as  that  of  an  expert  was  to  invite  the 
jury  to  treat  it  as  entitled  to  some  superior  consideration,  such 
as  the  testimony  of  ordinary  witnesses  was  not  entitled  to. 

The  question  about  the  length  of  time  after  death  when  nr/or 
inoHis  may  be  expected  to  set  in  was  a  question  for  expert 
medical  testimony.  Long  experience  and  observation  might 
stand  in  lieu  of  the  study  of  books,  and  qualify  one  to  speak  as 
an  expert  upon  this  siibject;  but  the  witness  called  as  an  expert 
upon  this  question  had  no  medical  knowledge,  had  read  nothing 
on  the  stibject,  and  had  no  experience  except  as  an  undertaker's 
assistant  in  preparing  dead  bodies  for  burial.  Tlis  attention  as 
an  undertaker  does  not  seem  to  have  been  si>ecially  directed  to 
this  question,  and  he  frankly  stated  that  he  was  not  an  expert 
upon  the  particular  subject. 

The  sixteenth  assignment  of  error  raises  another  question  of 
the  admissibility  of  evidence. 

The  Commonwealth  made  a  written  offer  to  prove  by  one 
Joseph  Peddicord  "that  in  1804  the  defendant,  with  Frank 
Wilson,  William  Doran,  and  the  witness,  had  entered  into  a 
combination  to  rob  Bon.iecke;  that  in  February,  1895,  the  de- 
fendant and  the  witness  assaulted  Bonnecke  in  his  own  house, 
and  attempted  to  rob  him,  and  that  the  same  evening  the  de- 
fendant proposed  to  witness  to  renew  the  attack  upon  Bonnecke, 
and  effect  the  robbery ;  that  the  uitnt^s  declined,  and  thereupon 
the  defendant  swore  that  he  would  get  Bonnecke's  money,  if  ho 
had  to  kill  the  old  man  to  do  so."  This  offer  was  limited  to  no 
particular  purpose,  but  was  made  with  the  idea  that  it  was  evi- 
dence for  the  purpose  of  establishing  the  guilt  of  the  defendant. 
It  was  objected  to,  and  both  its  competency  and  the  admissi- 
l>ility  of  the  Avitncss  were  denied.  It  must  be  remembered  that 
Bonnecke  was  killed  between  the  night  of  the  4th  of  April, 
1805,  and  the  morning  of  Sunday,  the  7th.  The  defendant 
could  not  have  reached  Altoona  earlier  than  about  nine  o'clock 


COMMONV^EALTH  v.  FARRELL. 


471 


on  Saturday  evening,  the  Gtli  of  April.  It  cannot  bo  said  to  bo 
clear  that  he  was  there  at  all  on  that  night.  Our  question,  there- 
fore, is,  do  the  facts  embodied  in  this  offer  tnnd  to  show  that 
the  defendant  did  participate  on  the  night  of  the  Gth  of  April 
in  the  robboi-y  and  murder  of  Bonneckc  ?  A  threat  to  rob  would 
have  been  admissible  to  show  knowledge  or  motive  on  the  part 
of  the  defendant,  but  tliere  is  no  legal  prcsumptidu  that  such  a 
threat  will  be  executed,  such  as  relieves  the  CommonweaUh 
from  the  duty  to  prove  tiie  fact  it  alleges,  viz.  the  participation 
of  the  defendant  in  the  robbery  and  killing  alleged.  The  court, 
however,  not  only  admitted  the  offer  as  tending  to  prove  the 
actual  presence  at  the  murder  of  the  defendant,  but  dnnv  the 
attention  of  the  jury  to  it  as  evidence  bearing  upon  this  sub- 
ject. The  learned  judge  said  in  his  charge:  "The  Conimon- 
wealth  offered  evidence  which  it  is  alleged  points  to  the  guih  of 
James  Farrell,  the  defendant,  and  proves  that  he  is  the  nuir- 
derer,  or  one  of  the  murderers,  of  llcnrv  Bonueeke.  Threats 
made  by  Farrell  after  his  unsuccessful  attempt  t<  rob  Bonneckc 
on  February  21,  1895,  as  testified  to  by  Joseph  Peddicord,  arc 
relied  on  by  the  CommonAvealth  as  part  of  such  proof.  In  this 
connection,  however,  I  would  caution  you  not  to  attach  undue 
importanco  to  the  fact  that  Farrell  did  attack  Bonneckc  on  Feb- 
ruary 21,  1895.  Such  fact  was  properly  admissible  as  part  of 
the  res  (jestm,  or  siirrounding  circumstances  of  Peddicord's  tos- 
tiniDny,  and  as  a  cii'cunistanco  which  might  point  to  the  proba- 
bility of  Far^'ell's  renewing  the  attempt ;  but  you  must  not  allow 
it  to  unduly  prejudice  you  against  the  defendant."  This  was 
an  instruction  to  the  jury  that  the  evidence  of  the  att('inj)tc(l 
robbery,  and  the  threat  to  renew  it.  had  been  properly  nn-eivod, 
an<l  was  to  be  considered  as  bearing  upon  the  "prnbnbility  of 
Farrell's  renewing  the  attempt;"  or,  in  other  words,  of  his  guilt 
of  murder  as  charged  in  the  indictment.  The  caution  not  to 
give  "undue  importance"  to  the  facts  set  out  in  the  offer,  with- 
out some  distinct  statement  of  what  this  "undue  importance" 
was,  was  of  no  value. 

We  come  now  to  the  question  raised  by  the  seventeenth  as- 
sigmnent.  The  defendant  was  arrested  at  Allequippa,  Beaver 
county.  Pa.,  in  Xovember,  l'^05.  some  six  months  after  the 
murder  of  Bonneckc.     He  was  taken  to  Altoona,  and  two  or 


\m^  I 


J.? 


Id.; 


mil' 


'I 


.1 


irar 


472 


AMERICAN  CRIMINAL  REPORTS. 


I  i!  !1 


!! 


three  days  later  one  of  the  detectives  procured  a  second  warrant, 
returned  to  AUequippa,  and  with  the  aid  of  a  local  constable 
made  search  in  the  room  and  bed  which  had  been  occupied  by 
Farrell  while  at  Alleqiiippa.  The  constable  found  an  old,  worth- 
less pocketlK)ok  in  the  bed.  This,  it  was  alleged,  had  belonged 
to  ]}onnecke,  boon  taken  from  him  at  the  time  of  tlie  nuinlor, 
and  kept  concealed  by  Farrell  for  more  than  six  months.  This 
pocketbook  had  been  torn,  and  rudely  mended  with  thread  of 
usual  size  and  character.  It  Avas  sought  to  connect  this  worth- 
less pocketbook  with  Bonnecke  by  showing  that  he  had  a  smaller 
pocketbook  that  had  been  mended  in  a  similar  manner.  For 
this  purpose  a  witness  was  put  upon  the  stand  as  an  expert  to 
prove  that  the  repairs  upon  each  pocketbook  had  been  made  by 
the  same  person,  with  the  same  thread.  The  witness  declineil 
to  say  that  the  repairs  on  botli  were  made  by  the  same  person. 
The  thread  used  had  been  the  same  in  number  on  both,  as  ho 
thought,  but  it  was  a  common  number,  and  was  not  a  certain 
basis  for  an  opinion  that  the  wovk  had  been  done  by  the  same 
person.  This  evidence  was  submitted  to  the  jury  in  those 
words:  "If  the  jwcketbook  in  question,  to  wit,  the  pocketbook 
found  in  the  bed  at  Allequi])pa,  was  the  pocketbook  of  Henry 
Eonnecke,  and  was  stolen  at  the  time  of  his  death  in  1805,  and 
was  taken  to  Allequippa  by  Farrell,  and  was  concealed  in  his 
bed,  then  there  would  be  a  strong  presumption,  arising  from 
the  possession  of  stolen  projierty,  that  Farrell  was  the  robbei*, 
or  one  of  the  robbers,  who  stole  said  pocketl)ook,  and  unfcu'tu- 
nately  it  would  strongly  tend  to  show  that  he  is  guilty  of  being 
concerned  in  the  death  of  Henry  lionnecke."  The  other  side  of 
this  subject  was  presented  thus:  *'0n  the  contrary,  if  you  have 
a  reasonable  doubt  whether  this  ]iooketbook  ever  belonged  to 
Henry  Bonnecko,  yon  should  dismiss  the  circumstance  of  the 
mending  of  the  pocketlmok  from  the  case,  and  allow  it  to  have 
no  weight  against  the  defendant."  The  only  consideration 
brought  distinctly  to  the  notice  of  the  jury  is  the  identity  of 
the  pocketbook  brought  from  All(>(]uip]ia  as  one  of  those  which 
the  murdered  man  owned  and  had  in  his  possession  at  the  time 
of  his  death.  But  suppose  this  be  conceded;  it  by  no  means 
follows  that  the  defendant  either  took  it  from  the  nnirdered 
man,  or  placed  it  where  it  was  f<nind.     What  motive  had  the 


COMMONWEALTH  v.  FARRELL. 


473 


defendant,  if  he  had  been  one  of  the  murderers  of  Bonnecke, 
to  keep  this  pockctbook?  It  was  neither  nsoful  nor  ornamental. 
Its  possession  could  only  be  a  source  of  constant  danger.  ]]ut, 
if  he  really  did  desire  to  keep  it,  why  put  it  in  his  bed,  when  it 
woxild  naturally  bo  discovered  every  morning  when  his  bed  was 
made  up  for  the  day  ?  It  might  have  been  put  there  in  his  ab- 
sence. It  might  have  been  put  there  even  after  the  search  l)e- 
gan.  AYhich  seems  most  probable, — that  Farrcll  had  kept  this 
pocketbook  for  six  months  in  his  bed,  or  that  it  had  found  its 
way  into  the  bed  after  his  arrest?  The  credibility  of  this  story 
was  plainly  for  the  jury,  and  they  should  first  have  determined 
its  value. 

In  this  connection  the  tenth  assignment  may  be  conveniently 
considered.  The  nmrdor  of  Bonnecke  occurred  at  a  time  when 
the  attention  of  none  of  the  surrounding  citizens  was  attracted 
to  it.  The  night  when  it  was  done  was  as  wholly  unknown  as 
the  persons  by  whom  it  was  done.  A  detective  was  employed 
to  investigate  the  case,  and  to  try  and  bring  the  guilty  ones  to 
trial  and  conviction.  This  agency  spent  much  time  on  the  case, 
and  it  was  by  them  that  the  arrest  of  the  defendant  was  pro- 
cured. The  detective  hunted  up  the  evidence  against  him,  or 
fiirnishetl  it  as  the  result  of  their  interviews  with  him,  or  their 
investigations  into  his  habits  and  surroundings.  As  tending  to 
show  thoir  interest  in  the  case,  and  to  some  extent  affecting 
their  ci'odibility,  they  were  asked  u])on  cross-examination  to 
state  the  general  character  of  the  contract  with  the  county,  and 
how  their  ]iny  was  to  be  adjusted.  This  was  objected  to,  and 
excluded  bv  the  court.  But  why  was  it  not  competent?  What- 
ever temls  to  show  the  interest  or  feeling  of  a  witness  in  a  cause 
is  conr'Otent  bv  way  of  cross-examination.  If  the  witness  had 
stated  that  his  pay  was  conditional  upon  or  was  to  be  affecteil 
bv  the  result  of  the  trial,  in  anv  manner,  it  cannot  be  doubted 
that  siich  a  bargain  would  have  shown  just  what  his  interest  in 
the  conviction  of  the  defendant  was,  and  been  entirely  proper 
for  the  jury  to  consider  in  determining  his  credibility.  So,  also, 
if  he  or  his  superiors  had  received  a  large  sum  from  the  county 
for  services,  and  if  they  were  really  conducting  the  pi'oseeution 
for  the  county,  that  fact  could  be  shown  upon  cross-examina- 
tion.    It  might  not  have  been  a  very  important  fact,  but  it  was 


Ili 

ll'il'' 


47'i 


AMERICAN  CRIMINAL  REPORTS. 


a  competent  one,  upon  cross-examination.  There  are  other  ques- 
tions raised  hy  tho  assignments  of  error  that  invite  discussion, 
but  their  importance  in  this  case  is  not  such  as  to  require  it. 
Those  we  have  considered  are  conclusive  of  this  appeal,  and  re- 
quire us  to  reverse  the  judgment  appealed  from,  and  award  a 
new  venire.    Let  an  order  be  entered  accordingly. 


;iil 


I'  I :' 


i 


Note  (by  H.  C.  G.). — Mr.  Rogers,  In  his  work  on  Expert  Testimony, 
section  1,  defines  thus:  "An  expert  is  one  who  is  sltilled  in  any  par- 
ticular art,  trade  or  profession,  being  possessed  of  peculiar  knowledge 
concerning  the  same.  Strictly  speaking,  an  expert  in  any  science,  art, 
or  trade,  is  one  who,  by  practice  or  observation,  has  become  experi- 
enced thereon.  An  expert  has  been  defined  as  'a  person  of  skill;'  as  a 
skilful  or  experienced  person;  a  person  having  skill,  experience  or 
peculiar  knowledge  on  certain  subjects,  or  in  certain  professions;  a 
scientific  witness." 

In  Chi.,  M.  d  8t.  P.  Ry.  Co.  v.  Kellogg,  94  U.  S.  4C9,  it  was  said: 
"The  subject  of  proposed  inquiry  was  a  matter  of  common  observation, 
upon  which  the  lay  or  uneducated  mind  is  capable  of  forming  a  judg- 
ment. In  regard  to  such  matters,  experts  are  not  permitted  to  state 
their  conclusions.  In  questions  of  science  their  opinions  are  received, 
for  in  such  questions  scientific  men  have  superior  knowledge,  and  gen- 
erally think  alike.    Not  so  in  matters  of  common  knowledge." 

In  Franklin  F.  his.  Co.  v.  Grnvcr.  100  Pa.  St.  206,  the  court  ex- 
pressed surprise  that  a  witness  could  be  claimed  to  be  an  expert  whose 
range  of  observation  and  knowledge  was  so  general  that  it  must  be 
common  to  every  person,  and  said:  "The  opinion  of  a  witness  who 
neither  knows,  nor  can  know,  more  about  the  subject-matter  than  the 
Jury,  and  who  must  draw  his  conclusions  from  facts  already  in  the 
possession  of  the  jury,  is  not  admissible." 


Smith  v.  State. 


I  'in 


IOC  Ga.  673—32  S.  E.  Rep.  851. 

Decided  March  14,  1899. 

Homicide:  Justifiable  homicide  —  Voluntary  .manslaughter — Defense  of 
habitation — Flight  as  evidence  of  guilt — Instructions. 

1.  The  evidence  did  not  warrant  a  charge  of  voluntary  manslaughter. 

2.  The  fact  that  one  who  has  done  an  act  which  may  amount  to  a 

crime  immediately  flees  may  always  be  given  in  evidence  as 
tending  to  show  guilt,  but  should  be  considered  by  the  jury  in 
connection  with  the  motive  that  prompted  it,  and,  at  most,  is 
only  one  of  a  series  of  circumstances  from  which  guilt  may  be 
inferred. 


SMITH  V.  STATE. 


475 


3.  The  provisions  of  law  relating  to  justifiable  homicide,  where  the 

parties  had  been  engaged  in  mutual  combat,  contained  in  section 
73  of  the  Penal  Code,  were  not  applicable  to  the  facts  of  this  case. 

4.  When  two  or  more  persons  manifestly  intend   and  endeavor,  in 

a  riotous  and  tumultuous  manner,  to  enter  the  habitation  of 
another,  for  the  purpose  of  assaulting  or  offering  personal  vio- 
lence to  any  one  being  therein,  and  one  of  them,  to  prevent  such 
entry,  is  killed  by  the  occupant  of  the  house,  if  the  circumstances 
were  sufficient  to  excite  the  fears  of  a  reasonable  man  that  such 
entry  was  intended,  and  the  killing  was  done  under  the  influence 
of  such  fears,  such  a  homicide  is  justifiable,  even  though  the  as- 
sault or  personal  violence  intended  be  less  than  a  felony;  and  a 
charge  that  the  assault  intended  must  amount  to  a  felony  was 
error. 

(Syllabus  by  the  Court.) 

Smith  was  convicted  of  voluntary  manslaughter  in  the  Gwin- 
nett County  Superior  Court,  Ilutchins,  Judge,  and  brings  error. 
Kevei'sed. 

■John  E.  Cooper,  Oscar  Brown  and  J.  A.  Ferry,  for  the  plaint- 
iff in  error. 

C.  //.  Brand,  Solicitor  General,  for  the  State. 

LiTTT.K,  J.  The  first  two  grounds  of  the  motion  for  new  trial 
are  based  on  the  alle<ratinns  that  the  verdict  is  contrarv  to  law, 
and  witbont  evidence  to  support  it.  huismueh  as  the  case  goe> 
back  for  another  trial,  we  do  not  pass  upon  the  weight  of  the 
evidence  in  the  case. 

1.  Tbe  next  ground  of  error  assigned  is  that  the  court  erred 
in  charging  tlie  jury  the  law  in  relation  to  voluntary  manslaugh- 
ter. AVe  are  of  the  opinion  that,  under  the  facts  in  this  case, 
there  was  no  evidence  which  authorized  a  cbarge  on  the  laAv  of 
voluntary  manslaughter.  "\Vc  do  not  wish  to  be  understood  as 
saying  that,  if  the  circumstances  were  different,  that  is  to  say, 
if  there  was  any  proof,  or  a  legitimate  inference  from  the  fac:  5 
in  evidence,  that  the  plaintiff  in  error  slew  the  deceased  as  the 
result  of  passion  founded  on  sufficient  provocation,  found  in  the 
trespass  of  the  deceased  on  the  property  of  the  accused,  the  of- 
fense of  which  he  would  be  guilty  would  not  be  that  of  volun- 
tarv  nianslauffhter.  Everv  honucide  committed  as  the  resuH 
of  passion  is  by  no  means  to  be  chisscd  as  voluntary  manslaugh- 
ter.    A  homicide,  Avhen  done  in  the  absence  of  malice,  and  as 


Hi'"  ■ 


\% 


I' 


I 


J. 

-■! 

I  I 

i 

1 


wm 


III  1 1 


r 


li!    ' 


ll|j/Br 


m-^ 


476 


AMERICAN  CRIMINAL  REPORTS. 


tlic  result  f'f  n  suddou  heat  of  passion  engendered  by  a  provoca- 
tion sufficient  in  law  to  justify  the  passion,  is  graded  below  tho 
crime  of  murder,  because  the  killing  is  then  partially  excused 
on  account  of  tho  justly-aroused  passion.  Xor  is  it  always  nec- 
essary, in  order  to  grade  the  offense  as  voluntary  manslaughter, 
that  there  should  be  an  assault  upon  the  person  killing,  to  jus- 
tify the  excitement  of  passion  which  induced  the  homicide. 
Golden  V.  State,  25  Ga.  5132;  Stokes  v.  State,  18  Ga.  17.  Our 
Penal  Code,  §  05,  declares  that  in  all  eases  of  voluntary  man- 
slaughter there  nuist  be  some  actual  assault  upon  the  person 
killing,  or  an  attempt  by  the  person  killed  to  commit  a  serious 
personal  injury  on  the  person  killing,  or  other  equivalent  cir- 
cumstances to  justify  the  excitement  of  passion.  Assuming,  as 
wo  must,  under  tho  evidence,  that  the  deceased  was  a  tres- 
jiasser  on  the  property  of  the  accused  at  the  time  of  the  homi- 
cide, under  the  theory  of  the  State  ho  was  a  mere  trespasser, 
without  intending  to  injure  the  jjcrson  or  property.  Under  gen- 
eral criminal  law,  neither  insulting  nor  abusive  words  or  gest- 
ures, nor  trespass,  nor  breach  of  contract,  of  themselves,  amount 
to  sufficient  provocation  for  an  act  of  resentment  likely  to  en- 
danger life.  A  mere  tresj>ass  on  projierty,  less  than  that,  to  pro- 
tect which,  our  Code  makes  it  justifiable  homicide  to  kill  tho 
tresjjasser,  may  be  resisted  by  any  reasonable  or  necessary  force, 
short  of  taking  or  endangering  life.  Clark's  Criminal  Law,  145. 
Jf,  in  the  course  of  a  struggle  to  prevent  such  a  trespass,  by  the 
use  of  reasonable  and  necessary  force,  which  the  owner  is  en- 
titled to  us',>,  a  struggle  and  combat  ensue,  then,  whether  tlia 
slayer  is  justified,  or  guilty  of  murder  or  voluntary  manslaugh- 
ter, is  to  be  determined  by  other  rules,  not  necessary  here  to  be 
discussed.  According  to  the  evidence,  there  was  no  attempt  to 
remove  the  trespasser;  but  the  theory  of  the  State  is  that  tho 
accused,  with  malice,  or  actuated  by  the  spirit  of  revenge, 
deliberately  shot  tho  deceased  while  standing  in  the  yard  of 
the  latter,  when  there  was  no  necessity  for  him  to  do  so  to 
protect  his  habitation  or  family,  and  no  circumstances  at  tho 
time  to  justify  a  passion  which  caused  him  to  shoot  the  de- 
ceased. The  theory  of  the  defendant  was  that  he  shot  and  killed 
the  deceased  to  jirevent  him  from  entering  his  house,  which  he 
says  the  deceased  was  attempting  to  do,  to  commit  an  assault  on 


SMITH  V.  STATE. 


477 


the  person  of  his  wife.  The  issue  is  a  clearly-dofinecl  one.  If 
tl.^  theory  of  the  defcncUint  he  supported  by  the  facts,  he  was 
not  guilty  of  nny  offense,  hut  was  entirely  justified.  If  the 
theory  of  the  State  he  correct,  then  the  crime  was  murder. 
Under  the  evidence,  there  seemed  to  have  been  a  deliberate 
shooting  on  the  part  of  the  defendant,  not  as  the  result  of  pas- 
sion, not  in  a  stniggle;  nf)r  was  there  any  mutual  combat,  nor 
any  evidence  of  an  attempt  by  the  slayer  to  remove  the  tres- 
passer from  his  premises  otherwise  than  by  deliberately  shooting 
him  doAvn.  The  evidence  in  this  case  is  remarkable,  not  for  what 
the  witnesses  who  went  to  the  house  of  the  accused  with  the  de- 
ceased say  as  to  the  facts  of  the  homicide,  but  as  to  what  they 
do  not  say;  and,  although  three  of  them  were  present  at  the 
time  on  the  premises  of  the  accused,  no  clear  account  is  ren- 
<lered  by  any  of  them  as  to  the  facts  of  the  homicide.  But 
from  the  evidence  of  these  witnesses,  and  circumstances  shown 
by  other  witnesses,  we  fail  to  find  any  circumstances  establish- 
ing the  proposition  that  the  shooting  Avas  the  result  of  passion. 
This  being  true,  a  charge  I'elating  to  voluntary  manslaughter 
was  error.  Nor  can  a  conviction  for  this  offense  stand,  imder 
the  evidence  disclosed  in  the  record.  Dyal  v.  State,  97  Ga.  42S, 
25  S.  E.  Rep.  319. 

2.  Another  ground  of  the  motion  for  new  trial  alleges  that 
the  court  erred  in  charging  on  the  subject  of  flight.  The  lan- 
guage of  the  court  on  this  siibject  is  as  follows :  ''Something  has 
been  said  npon  the  subject  of  flight.  The  rule  on  that  subject  is 
that  where  one  commits  an  act  that  amounts  presumptively  to 
a  crime,  and  the  party  who  commits  the  act  immediately  flees 
from  the  processes  and  officers  of  the  law,  to  avoid  arrest  or 
trial,  the  presumption  would  be  authorized  that  he  fled,  from 
the  conscio\isness  of  guilt.  That  presumption  can  be  rebutted 
by  showing  that  flight  was  not  from  a  sense  of  conscious  guilt, 
but  for  other  reasons."  It  may  be  that  the  principle  stated  by 
the  judge  in  his  charge  is  a  correct  one,  and  if  the  propositions 
that  the  accused  immediately  flees  from  the  processes  and  officers 
of  the  law,  and  that  such  flight  was  for  the  purpose  of  avoiding 
arrest  or  trial,  be  assumed,  the  conclusions  which  follow  are 
legal  and  natural.  But,  whether  so  or  not,  the  charge  as  to  the 
law  of  presumptions  which  applies  to  the  flight  of  one  who  is 


47S 


AMERICAN  CRIMINAL  REPORTS. 


iili  i' 


i 


I 


cliargofl  with  the  commission  of  an  oflfenso,  ov  litis  dono  an  not 
which  may  amonnt  to  n  crime,  was  too  stronjajly  pnt,  ami,  with- 
out qualification,  does  not  correctly  lay  down  the  principle  ap- 
plicable under  the  facts  of  this  case.  !Mr.  Wharton,  in  his  work 
on  Criminal  Evidence,  §  750,  in  treating  this  subject,  says: 
''When  a  suspected  person  attempts  to  escape  or  evade  a  threat- 
ened prosecution,  it  may  be  argued  that  he  does  so  from  a  con- 
sciousness of  guilt,  and,  though  this  inference  is  by  no  means 
strong  enough  by  itself  to  warrant  a  conviction,  yet  it  may  be- 
come one  of  a  scries  of  circumstances  from  which  guilt  may  1)0 
inferred."  And,  further  treating  the  sul)ject,  ho  also  says :  ''The 
question,  it  cannf)t  be  too  often  repeated,  is  simjily  one  of  in- 
ductive probable  reasoning  from  certain  established  facts.  All 
the  courts  can  do,  when  such  inferences  are  invoked,  is  to  say 
that  escape,  disgiiisc,  and  similar  acts,  aflFord,  in  connectiun 
with  other  proof,  the  basis  from  which  giiilt  may  be  inferred; 
but  this  should  be  qualified  by  a  general  statement  of  the  coun- 
tervailing considerations  incidental  to  a  comprehensive  view  of 
the  question.  Underbill,  in  his  treatise  on  Criminal  Evidence, 
§  119,  citing  95  Mo.  623,  2  X.  Y.  Crim.  Rep.  450,  says:  "Jt 
cannot  with  correctness  be  said  that  the  flight  or  attempted 
flight  of  the  accused  before  his  arrest,  taken  alone,  raises  any 
legal  presumption  of  guilt,  or  that  his  flight,  without  regard  to 
the  motive  which  prompted  it,  is,  in  law,  evidence  of  guilt.  At 
the  most,  it  is  only  a  circumstance,  to  be  considered  by  the  jury 
with  the  reasons  that  pronii)ted  it,  tending  to  show  guilt,  or  by 
which  an  inference  of  guilt  may  be  raised,  and  it  has  no  proba- 
tive force  unless  it  appears  that  the  accused  fled  to  avoid  arrest 
or  imprisonment."  In  the  case  of  Ilichorij  v.  United  Slates, 
100  U.  S.  408,  16  Sup.  Ct.  327,  it  was  ruled  that  the  flight  of 
the  accused  is  a  presumption  of  fact,  not  of  law,  and  is  merely 
a  circumstance  tending  to  increase  the  probability  of  the  de- 
fendant's being  the  guilty  person,  which  is  to  be  weighed  by  the 
jury  like  any  other  evidentiary  circumstance.  See  People  v. 
Wong  Ah  Xgow,  54  Cal.  151;  S.  C,  35  Am.  Rep.  69.  And 
such,  also,  is  the  ruling  of  our  own  court.  Jesse  v.  State,  20  Ga. 
156-166;  Smith  v.  State,  63  Ga.  170;  Sewell  r.  State,  76  Ga. 
836.  The  judge  in  this  case  charged  that  the  rule  Avas,  where 
one  immediately  flees  to  avoid  arrest  or  trial,  that  the  presump- 


SMITH  V.  STATE. 


470 


tion  would  be  authorized  that  he  flod,  from  the  consoinusiuss 
of  gnilt.  This  we  think  was  not  a  fair  presentation  of  tlie  law 
of  this  case,  for  there  was  evidence  tending  to  show  the  Higlit 
Avas  not  from  the  officers  of  the  law,  but  to  escape  violence  frum 
ilie  companions  of  the  deceased;  and  the  court  made  no  qualiti- 
cation  of  its  charge,  appropriate  to  the  evidence  just  mentioned. 
Flight  is,  at  most,  only  a  circumstance  which  may  be  w(>igliod 
by  the  jury,  in  connection  with  other  circumstances,  to  deter- 
mine guilt,  and  is,  of  itself,  no  such  circumstance  as  anthurizc,^ 
the  jury  to  presume  guilt. 

3.  Another  ground  of  the  motion  for  new  trial  is  that  tlie 
court  erred  in  charging  the  jui'y  the  provisions  of  section  73  of 
the  Penal  Code,  in  relation  to  the  homicide  of  a  person  where 
tlie  killing  must  be  done  in  order  to  save  the  life  of  the  slayer. 
It  must  be  apparent  that  the  law  of  this  section  of  the  Coilo  is 
wholly  inapplicable  to  a  case  of  this  character.  The  provisions 
of  this  section  apply  only  to  eases  of  mutual  combat,  where  one 
jierson  endeavors,  in  good  faith,  to  decline  any  further  struggle. 
To  such  a  person  it  is  only  justifiable  to  slay  his  adversary  after 
a  bona  fide  effort  to  avoid  all  further  difficulty.  Powell  v.  Stale. 
101  Ga.  9,  29  S.  E.  Rep.  309.  The  slayer  is  protected  only  in 
cases  in  which  the  provisions  of  the  section  apply,  when  the 
killing  was  done  as  an  absolute  necessity  to  save  his  own  lif(>, 
and  only  in  cases  Avhen  it  appears  that  the  person  killed  was 
the  assailant,  or  that  the  slayer  had,  in  ,n:ood  faith,  endeavored 
to  decline  anv  further  struggle  before  he  inflicted  the  mortal 
woinid.  There  was  no  evidence  of  any  mutual  cond)at  between 
the  deceased  and  the  accused  preceding  this  homicide.  On  the 
contrary,  the  accused  Avas  in  his  house,  and  the  deceased  on  his 
premises,  without  the  house.  There  was  no  evidence  of  quar- 
reling between  them,  nor  of  any  attempt  at  flight;  and  the  rules 
which  determine  the  guilt  or  innocence  of  the  defendant  are 
not  to  be  found  in  these  provisions  of  law. 

4.  An  exception  is  taken  to  the  charge  of  the  court  which  in- 
structed the  jury  as  follows:  "If  persons  assemble  before  an- 
other's house,  and  actually  advance  on  him,  and  render  it  nec- 
essary for  his  protection,  or  make  such  demonstrations  as  to 
excite  the  fears  of  a  reasonable  man  that  it  was  their  intention 
to  commit  a  felony  on  him  or  some  member  of  his  family,  he 


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4S0 


AMERICAN  CRIMINAL  REPORTS. 


"would  1)0  justificcl  in  shooting  tliciii ;  Iml,  if  tlicy  merely  threiiteii 
to  conunit  violence,  he  is  not  jnstitialilo  in  shouting  until  ho  luis 
Avurned  thorn  v^r."'  Wc  do  not  think  this  is  a  fair  i>roseiitntion 
of  the  provisions  of  our  law  which  afford  protection  to  one  who 
resists  an  invasion  of  the  house  in  which  ho  dwells.  Section  70 
of  the  Ponal  Code  declares  that  it  is  justiiialdo  homicide  for  ono 
to  kill  a  person  who,  in  connection  with  another  or  others,  nuini- 
fostly  intends  and  endeavors,  in  a  riotous  and  tumultuous  man- 
ner, to  enter  the  habitation  of  another  ft»r  the  i)urposc  of  as- 
saulting or  oiTering  ])ersonal  violence  to  any  person  dwelling  or 
being  therein.  It  was  held  in  the  case  of  Ihtihjins  v.  Siafc,  2 
(la.  1T;5,  that  this  provision  of  the  Ponal  Code  does  not  npply 
to  a  single  individual,  but  contemplates  the  joint  action  of  two 
or  more  persons,  and  that  under  this  section  the  killing  is  jus- 
tifiable when  the  assailant  designed  entering  the  habitation  for 
the  purpose  of  assaulting,  or  of  offering  any  personal  violence 
to,  one  of  the  inmates.  So  that  this  case  establishes  two  propo- 
sitions,— that  under  this  provision  of  the  Code  it  is  justifiable 
homicide  for  one  to  kill  another  who,  in  company  with  some  per- 
son or  with  otlier  pei'sons,  intends  and  endeavors,  in  a  riotous 
and  tumultuous  manner,  to  enter  his  habitation  for  the  purpf)So 
of  assaulting  or  offering  personal  vi<dence  to  any  person  therein, 
and  that  it  is  not  necessary,  in  order  to  justify,  that  such  per- 
sonal violence  shall  amount  to  a  felony. 

In  the  case  of  Cahhrell  v.  State,  34  Ga.  10,  where  a  number 
of  persons  went  to  the  house  of  another,  and  endeavored,  against 
the  will  of  the  owner,  to  force  an  entrance,  and,  having  broken 
a  window,  one  of  them  proceeded  to  enter  the  window,  and  was 
shot  by  the  prosecutor  in  the  act,  this  court  held  that  a  fair  iCst 
whether  the  prosecutor  was  guilty  of  murder,  or  even  of  man- 
slaughter, was  whether  the  person  killed  was  violently  and  un- 
lawfully entering  his  dwelling.  Again,  under  the  provisions  of 
section  72  of  the  Penal  Code,  if,  after  persuasion,  remonstrance, 
or  other  gentle  measure  used,  a  forcible  attack  and  invasion  on 
the  habitation  of  another  cannot  be  prevented,  it  is  justifiable 
homicide  to  kill  the  person  so  forcibly  attacking  and  invading 
the  habitation  of  another;  but  it  must  appear  that  such  killing 
was  absolutely  necessary  to  prevent  such  attack  and  invasion, 
and  that  a  serious  injury  was  intended,  or  might  accrue,  to  the 


SMITH  r.  STATE. 


481 


pcr- 


pcrson,  property,  or  family  of  the  person  killing.  Under  tlio 
provisions  of  these  two  seetions  of  our  Code,  it  nnist  be  apparent 
that  the  court  erred  in  charging  the  jury  as  coinplaini'd  of.  If, 
as  a  matter  of  fact,  the  evidence  shows  that  more  thna  one  per- 
son, acting  in  concert  and  in  the  prosecution  of  n  joint  enter- 
prise, went  to  the  house  of  the  plaintiff  in  error,  then,  whether 
the  provisions  of  section  70  of  the  Penal  Code,  above  referred 
to,  would  apply,  depends  entirely  upon  whether  they,  or  one  of 
them,  in  the  prosecution  of  such  cojnmon  intent,  manifestly  in- 
tended and  endeavored,  in  a  riotous  and  tunudtuous  manner,  to 
enter  his  house  for  the  purpose  of  assaulting,  or  offering  per- 
sonal violence  to,  any  person  therein.  Then,  if  the  defendnnt 
shot  and  killed  one  of  such  persons  so  intending  and  endeavor- 
ing to  enter,  it  would  be  justifiable  homicide.  If,  however, 
only  one  of  such  persons  made  a  forcible  attack  and  attempt  to 
invade  the  habitation,  after  persuasion,  remonstrance,  or  other 
gentle  measures,  and  such  attack  and  invasion  could  not  other- 
wise bo  pre\ented,  it  was  justifiable  homicide  to  kill  the  person 
so  nniking  the  attack  and  invasion.  And  this  is  manifestly 
right.  The  law  protects  not  only  the  person  and  the  property  of 
the  citizen,  but  it  protects  his  home,  whether  it  be  a  hut  or  a 
palace ;  and  he  who  seeks  in  a  violent  manner  to  enter  that  habi- 
tation, and  will  not  heed  the  remonstrance  or  persuasion  of  the 
owner,  but  continues  the  attack  and  invasion,  intending  to  do 
a  serious  injury,  either  to  the  person  who  resides  there,  to  his 
house,  or  to  some  member  of  the  family,  forfeits  his  life ;  and 
he  who,  in  good  faith,  under  such  circumstances,  takes  the  life 
of  the  person  so  invading  his  home,  is  guiltless  of  crime,  and  is 
acting  in  the  due  protection  of  himself  and  his  family.  We  do 
not  say  that  the  facts  show  that  the  plaintiff  in  error  is  thus 
protected,  but  these  are  the  principles  of  law  which,  on  his 
theory  of  the  case,  should  have  been  given  in  charge  to  the  jury ; 
and  the  charge,  as  complained  of,  did  not  present,  as  we  con- 
sider, the  provisions  of  law  which  afford  the  slayer  protection 
under  the  circumstances  enumerated  in  the  statute. 

Other  than  as  herein  referred  to,  the  court  committed  no  error 
in  its  charge  to  the  jury  which  calls  for  a  reversal  of  its  judg- 
ment.   Judgment  reversed.    All  the  justices  concurring. 
VouXI  — 31 


'  If!" 
ill  I 


I 


482  AMERICAN  CRIMINAL  REPORTS. 


Pennington  v.  CoMMONWEALxn. 

21  Ky.  Law  Rep.  542—51  S.  W.  Rep.  818. 

Decided  June  17,  1899. 

Homicide:  Resisting  arrest — Duty  of  ofUcer  making  arrest — Prejudicial 

evidence, 

1.  Where  defendant  Is  accused  of  killing  an  officer  who  was  endeavor- 

ing to  arrest  him,  but  doing  so  without  notice,  the  court  should 
instruct  the  Jury  as  to  the  law  requiring  the  officer  to  give  such 
notice. 

2.  It  is  error  to  permit  the  defendant  to  be  cross-examined  as  to 

previous  convictions  and  prosecutions  not  connected  with  the 
charge  In  the  Indictment. 

Appeal  from  the  Leslie  County  Circuit  Court. 
Pennington,  convicted  of  murder,  appeals.    Reversed. 

T.  0.  Lewis,  Rader  &  Hanford,  and  Tinsley  &  Faulkner,  for 
the  appellant. 

>f .  S.  Taylor,  for  the  Commonwealth. 

IIazelrioo,  C.  J.  Appellant  was  indicted  and  convicted  of 
the  murder  of  Ilenty  Coots  in  Leslie  county,  and  from  the  ver- 
dict and  the  judgment  sentencing  him  to  the  penitentiary  for 
life  has  appealed  to  this  court. 

It  appears  that  the  accused  had  been  confined  in  the  Leslie 
county  jail  some  months  prior  to  the  homicide  on  a  felony 
charge, — obtaining  a  gun  under  false  pretenses,  it  appears, — 
and  had  escaped  jail.  K^o  warrant  issued  for  his  rearrest,  so 
far  as  appears  from  any  competent  evidence ;  but  a  deputy  con- 
stable and  the  deceased,  with  othera,  appear  to  have  undertaken 
his  rearrest,  and  had  been  looking  for  the  accused  in  the  neigh- 
borhood where  he  had  been  living  for  several  weeks  before  the 
night  of  the  killing.  On  the  night  of  the  killing,  accused  was 
at  the  house  of  two  women,  where  he  seems  to  have  frequented, 
and  was  unaware  of  the  proximity  of  the  officer  or  his  posse,  as 
he  was  sitting  by  the  fireside  with  a  child  in  his  lap,  but  with 
his  gun  in  easy  reach.  Suddenly  Turner,  Coots,  and  some  four 
others  charged  upon  the  house,  guns  and  pistols  in  hand,  and 
broke  open  the  door,  without  warning  or  notice,  and  with  their 


PENNINGTON  v.  COMMONWEALTH. 


483 


giiiis  prpflcntccl.  Two  shots  wore  fired  nlinost  si.  ultniiooiisly, 
niid  Coots  fell  mortally  wounded.  One  of  the  shots  was  lii-od 
by  nccuaed,  nnd  the  other  by  sotno  one  of  the  attneking  party. 
The  accused  escaped,  but  was  shortly  afterwards  arrtstod  in 
]Vrry  county.  Turner  had  been  an  officer  only  n  short  while, 
having  been  appointed  deputy  constable  by  an  order  of  the 
county  court,  as  is  now  permitted  by  the  statute;  but  there  is 
no  evidence  conducing  to  show  that  the  accused  know  he  was 
such  a  deputy.  He  did  know,  however,  that  Turner  and  Coota 
had  l)een  looking  for  him,  and  it  is  probable  ho  knew  that  tho 
attack  was  made  by  them  or  others  for  the  purpose  of  accom- 
plishing his  arrest.  The  question  of  such  knowledge  on  his  part 
was  substantially  submitted  to  tho  jury  in  the  instructions,  al- 
though in  an  involved  and  indirect  way;  but,  if  ho  (we?)  as- 
sume that  ho  had  such  knowledge,  still  there  is  no  instruction 
whatever  limiting  the  force,  or  defining  the  manner  in  which 
tho  arrest  might  lawfully  be  made.  Tho  court  instructed  the 
jury  that  the  officer  and  his  force  might  break  the  door  and  use 
all  necessary  force  to  make  tho  arrest,  but  there  was  no  instruc- 
tion that  tho  attacking  party  were  to  give  notice  of  their  inten- 
tion in  making  this  sudden  assault  on  the  house,  or  that  they 
were  to  use  no  more  force  than  was  necessary  to  make  the  ar- 
rest. In  view  of  the  manner  of  this  attempted  arrest,  made  in 
the  nighttime,  and  without  warning  or  notice,  this  limitation  of 
the  force  to  bo  used  should  have  been  defined  in  the  instnic- 
tions. 

On  the  trial  the  following  extract  of  the  cross-examination  of 
appellant  is  taken  from  the  bill  of  evidence,  to  all  of  which  evi- 
dence appellant  objected :  **Q.  Were  you  indicted  for  anything 
since  then  ?  A.  Yes,  sir.  Q.  What  was  it  ?  A.  I  was  charged 
with  killing  a  hog.  Q.  Wore  yoii  convicted  on  that  charge? 
A.  Yes,  sir.  Q.  Well,  go  on.  Were  you  indicted  for  anything 
else  ?  A.  I  was  indicted  hero  for  taking  a  gim  under  false  pre- 
tenses. Q.  Were  you  indicted  for  anything  in  any  other 
county  ?  A.  I  was  indicted  once  at  Salyersville,  Ky.,  for  carry- 
ing concealed  a  pistol.  I  was  tried  and  fined.  Q.  Were  you 
ever  convicted  and  sent  to  the  penitentiary  in  any  other  State? 
A.  No,  sir."  Then  follow  a  number  of  questions  as  to  whether 
the  accused  had  ever  been  indicted  in  the  counties  of  Knott, 


n;  I 


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B'7. 

in 


cn 


Wm.y 


J    f 
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i 


nn 


4S4 


AMERICAN  CRIMINAL  REPORTS. 


Pike,  Martin,  Breathitt,  Perry,  and  Bell ;  the  witness  answering 
in  the  negative  to  each  question. 

Our  statute  provides  (sec.  597,  Civil  Code)  that  a  witness 
may  not  be  impeached  by  "evidence  of  particular  A\1'ongful  acts, 
except  that  it  may  be  shown  by  the  examination  of  a  Avitness  or 
record  of  a  judgment  that  he  has  been  convicted  of  felony."  It 
follows  that  the  evidence  quoted  was  incompetent,  and  from  its 
nature  it  was  presumably  prejudicial.  Such  have  been  the  re- 
peated ruling  of  this  and  other  courts.  Baler  v.  Commoii- 
weallh,  20  Ky.  Law  Eep.  1778 ;  Martin  v.  Commonivcalth,  93 
Ky.  193,  19  S.  W.  Rep.  580;  Leslie  v.  Commonwealth,  19  Ky. 
Law  Rep.  102;  Saylor  v.  Commonivcalth,  17  Ky.  Law  Rep. 
103;  Robertson's  Kentucky  Criminal  Law  and  Procedure,  vol. 
2,  sec.  979 ;  Commander  v.  State,  CO  Ala.  1 ;  Pincl-ard  v.  State, 
13  Tex.  App.  478.  The  witness  was  also  compelled  to  give, 
over  his  objections,  the  minute  details  of  how  he  escaped  from 
the  jail  of  the  county  some  months  before  the  killing,  and  how, 
after  his  escape,  he  had  by  force  taken  a  gun  from  the  possession 
of  the  wife  of  one  Wilson  Baker,  in  Perry  county. 

Thei'c  is  other  objectionable  evidence  of  the  same  character, 
but  the  foregoing  will  serve  to  prevent  its  introduction  on  any 
future  trial.  For  the  reasons  given,  the  judgment  is  reversed, 
with  directions  to  award  the  accused  a  new  trial,  and  for  pro- 
ceedings consistent  with  this  opinion. 


People  v.  Cakbone. 

156  N.  Y.  413—51  N.  E.  Rep.  23. 

Decided  June  24,  1898. 

Homicide:  Two  separate  convictions  of  different  persons  for  the  same 
offense — Dying  declaration — Inconclusive  evidence. 

1.  Where  the  evidence  against  the  appellant  did  not  preclude  a  rea- 

sonable doubt,  and  where,  subsequent  to  his  conviction,  another 
person  was  convicted  under  another  indictment  for  the  same 
homicide,  the  court  of  appeals  will,  under  its  power  conferred  by 
section  528  of  the  Code  of  Criminal  Procedure,  in  a  capital  case, 
review  the  evidence  and  order  a  new  trial. 

2.  The  evidence  is  analyzed  and  held  not  to  be  conclusive. 


PEOPLE  V.  CARBONE. 


4S5 


Appeal  by  Angolo  Carbonc  from  a  judgment  of  tlie  Supreme 
Court  at  a  trial  term  in  Xew  York  county,  convicting  him  of 
murder  in  the  first  degree.    Reversed. 


Ilal  Bell  and  Ambrose  H.  Purdy,  for  the  appellant. 
James  D.  McClelland  and  Charles  E.  Le  Bwrhlcr,  for  re- 
spondent. 

Per  Curiam.  The  defendant  was  charged  in  the  indictment 
with  the  crime  of  murder  in  the  first  degree,  committed  upon 
one  ^Natele  Brogno,  in  the  evening  of  September  12,  1897,  in 
the  city  of  Xew  York.  Upon  his  arraignment  he  pleaded  not 
guilty.  A  trial  being  had,  he  was  found  guilty,  as  charged  in 
the  indictment,  upon  the  verdict  of  a  jurj'.  The  evidence  ad- 
duced by  the  People  showed  that,  upon  the  evening  in  ques- 
tion, the  defendant  was  first  seen  pursuing  the  deceased  upon 
Leonard  street,  in  the  direction  of  Center  street.  lie  was  seen 
to  strike  at  the  deceased  with  his  fist,  and  the  latter  fell  to  the 
ground  upon  his  face.  The  defendant  then  jumped  upon  his 
back  with  his  feet,  and,  bending  down,  again  struck  him  several 
times  with  his  clenched  hand.  Several  police  officers  came  up, 
and  the  defendant  was  seized.  The  deceased,  being  raised  from 
the  ground,  was  seen  to  have  been  stabbed  in  the  abdomen,  and 
to  have  been  cut  upon  one  of  his  wi'ists.  He  died  within  a  very 
few  minutes  after  the  occurrence.  Prior  to  his  death,  upon 
being  asked,  in  the  presence  of  the  defendant,  if  he  was  the  man 
who  stabbed  him,  the  deceased  answered,  "Yes."  When  further 
asked  what  the  defendant  had  stabbed  him  for,  ho  had  already 
become  unconscious,  and  was  unable  to  answer.  The  defend- 
ant was  searched,  but  no  weapon  was  found  upon  him.  Some 
time  aftenvards,  however,  a  small  penknife,  with  an  open  blade, 
\  .  s  found  at  or  near  the  spot  where  the  deceased  had  fallen. 
After  the  deceased  had  stated  that  it  was  the  defendant  who  had 
?tabl)ed  him,  the  latter  Avas  asked  why  he  had  done  so,  and  he 
replied,  denying  the  stabbing,  and  denying  that  he  had  any 
knife.  The  examination  of  the  body  of  the  deceased,  made 
by  the  ambulance  surgeon  and  by  the  coroner's  physician,  who 
made  the  autopsy,  showed  the  existence  of  two  incised  wounds, 
one  upon  the  forearm,  and  the  other  in  the  abdomen,  the  latter 


•i. 


486 


AMERICAN  CRIMINAL  REPORTS. 


of  which  was  the  cause  of  the  death.  On  the  part  of  the  defense^ 
a  nephew  of  the  defendant,  a  boy  twelve  years  of  age,  testified 
tlir.t,  upon  the  evening  in  question,  he  saw  his  uncle  fighting 
•with  the  deceased,  and  using  his  fists ;  that  the  latter  ran  away ; 
and  that,  while  he  was  so  running,  one  Alexander  Ciarmello 
canie  up  with  a  knife  in  his  hand,  appearing  to  be  a  stiletto  of 
six  or  seven  inches  in  length,  and,  while  the  deceased  was  look- 
ing back  over  his  shoulder,  struck  at  him  twice  with  the  weapon. 
The  witness  said  that  Ciarmello  then  put  the  weapon  in  his 
pocket,  and  walked  away,  and  that  the  deceased,  afteir  running 
some  200  or  300  feet  further,  with  the  defendant  in  pursuit,  fell 
down.  The  coroner's  physician,  upon  being  recalled  on  behalf 
of  the  defense,  testified,  upon  being  shown  the  knife  which  was 
picked  up  at  or  near  the  place  where  the  deceased  fell,  that  it 
was  absolutely  impossible  for  it  to  have  caused  the  wound  in  tho 
abdomen;  that  it  was  too  short.  The  district  attorney  states  in 
bis  brief,  and  it  was  admitted  by  him  in  open  court,  with  com- 
mendable fairness,  to  be  the  fact,  that,  since  the  trial  and  con- 
viction of  the  defendant,  Alexander  Ciarmello  was  indicted  and 
arrested  for  the  killing  of  the  deceased,  and  has  been  tried  and 
convicted  of  murder  in  the  second  degree  i.pon  the  charge,  and 
has  been  sentenced  to  imprisonment  for  life. 

We  are  satisfied  that  this  is  a  case  whore  justice  requires  a 
new  trial,  and  that  we  should  exercise  the  power  conferred  upon 
us  for  that  purpose  by  section  528  of  the  Code  of  Criminal  Pro- 
cedure. While  the  peculiar  situation  which  is  presented  moves 
us  to  exercise  this  power,  we  also  think  that  the  case  of  the  Peo- 
ple cannot  be  said  to  have  demonstrated  the  fact  of  the  killing 
of  the  deceased  by  the  defendant  beyond  a  reasonable  doubt. 
That  fact  and  the  fact  of  the  death  of  the  person  alleged  to  have 
been  killed  are  essential  to  be  established  by  the  People  upon 
such  an  issue, — the  latter  by  direct  proof,  and  the  former  be- 
yond a  reasonable  doubt.  Penal  Code,  §  181.  None  of  the 
witnesses  for  the  People  saw  a  knife  or  any  weapon  in  the  hands 
of  the  defendant,  and  none  was  found  as  the  result  of  a  search 
iipon  his  person ;  while  the  small  knife  which  was  found  upon 
the  spot  could  not  possibly  have  inflicted  the  wound,  according 
to  the  testimony  of  the  People's  witness,  the  coroner's  physician, 
who  performed  the  autopsy.    There  was  nothing  in  the  evidence 


PEOPLE  V.  COREY. 


487 


adduced  on  behalf  of  the  prosecution,  showing  what  had  oc- 
curred prior  to  the  moment  when  the  deceased  was  seen  running 
in  Leonard  street,  pursued  by  the  defendant;  and  Avhile,  from 
the  statement  of  the  deceased  and  the  other  circumstances,  an 
inference  was  possible  that  he  had  come  to  his  death  by  a  wound 
intentionally  inflicted  by  the  defendant,  yet  the  evidence  is  not 
of  such  a  nature  as  to  preclude  us  from  holding  that  it  wa's  lack- 
ing in  conclusiveness.  Therefore,  under  the  circumstances,  and 
in  view  of  the  admission  of  the  district  attorney,  we  think  that 
the  case  is  one  for  the  exercise  of  our  power  to  order  a  new  trial, 
and  that  it  is  required  in  the  interest  of  justice.  The  judgment 
of  conviction  should  be  reversed,  and  a  new  trial  ordered. 

All  concur,  except  O'Erien,  J.,  absent. 

Judgment  reversed,  etc, 


m 


People  v.  Cokey. 

157  N.  Y.  332—51  N.  E.  Rep.  1024. 

Decided  November  22,  1898. 

Homicide:  Judicial  Misconduct:  Mistaken  as  to  evidence — Misstating 
evidence  to  jury — Dying  declarations — Evidence — Reviewing  er- 
rors without  exceptions — Instructions. 

1.  Evidence  considered,  and  while  not  conclusive  as  to  murder  in  the 

first  degree,  still  the  verdict  was  not  unwarranted. 

2.  It  is  not  the  prerogative  of  the  judge  to  tell  the  jury  what  evidence 

a  witness  gave  on  a  former  trial. 

3.  Where  a  witness  for  the  People  was  making  damaging  admissions 

as  to  her  testimony  on  a  former  trial,  which  tended  to  discredit 
her,  it  was  error  for  the  trial  judge  to  interfere  and  stop  defend- 
ant's counsel,  and  ask  the  witness  how  she  "understood  it,"  and, 
turning  to  the  jury,  ask  them  if  they  heard  her  say  certain 
things;  and  further  to  interfere  a  second  time  and  say  that  he 
took  the  position  that  she  did  so  testify  on  the  former  trial,  and 
that  the  minutes  so  show,  etc.,  and  that  he  would  not  spend  any 
more  time  to  hunt  up  that  testimony;  whereas  the  judge  was 
mistaken,  and  neither  the  minutes  nor  any  other  evidence  sup- 
ported his  statements.  This  action  of  the  judge  was  character- 
ized as  "an.  unintentional  but  actual  perversion  of  the  witness' 
testimony  under  circumstances  calculated  to  help  the  People  and 
hurt  the  defendant." 


>i  a     ■ 


I^M 


™fl 


4S8 


AMERICAN  CRIMINAL  REPORTS. 


4.  The  constitutional  provision  that  the  accused  be  confronted  with 
the  witnesses  against  him  refers  to  living  ivitnesses,  and  not  to 
dying  declaratlbns. 

6.  It  is  error  to  charge  the  jury  that  the  lacli  of  hope  in  dying  declar- 
ants is  always  sufficient  to  cause  them  to  speak  the  truth.  There 
is  no  such  presumption  of  law,  and  experience  does  not  demon- 
strate its  correctness. 

6.  It  being  in  evidence  that  a  principal  witness  for  the  State  de- 

clared that  he  was  going  to  swear  tlie  defendant  to  hell,  etc.,  de- 
fendant's counsel  requested  an  instruction  that  the  jury  might 
consider  such  declarations  in  weighing  witness'  testimony.  The 
court  refused  this,  saying  that  he  had  called  the  attention  of  the 
jury  to  every  fact  they  had  a  right  to  consider,  whereas  he  had 
not  Instructed  on  this  particular  feature  of  the  evidence.  The 
court's  statement  was  held  to  be  misleading  and  prejudicial; 
and  further,  the  jury  should  have  been  instructed  on  this  phase 
of  the  evidence. 

7.  Under  the  provisions  of  the  Code  of  Criminal  Procedure,  the  court 

will,  in  capital  cases,  consider  all  material  errors,  though  no  ex- 
ceptions were  saved. 

Appeal  by  Michael  Corey,  alias  Michael  Kelly,  from  a  judg- 
ment of  conviction  of  murder  in  the  first  degree  at  a  trial  term 
of  the  Supreme  Court,  in  ^ladison  county;  and  also  from  an 
order  of  said  court  in  which  his  motion  for  new  trial  was  de- 
nied. 

The  defendant  appealed  from  a  previous  conviction  before 
the  same  justice,  which  was  reversed  for  errors  which  did  not 
develop  at  the  second  trial.     (148  X.  Y.  47 G.) 

Albert  0.  Bvujrjs  and  John  E.  Smith,  for  appellant. 

M.  II.  Klley,  for  the  respondent. 

< 

Vann,  J.  The  defeudant  was  indicted  for  the  murder  of 
James  George,  an  Indian,  on  the  27th  of  September,  18!>4,  at 
the  house  of  Orson  Webb,  in  the  town  of  Eaton,  ]^[adison  county. 
This  house  was  a  shanty,  twelve  or  thirteen  feet  l)y  si.xtecn, 
rudely  built  of  boards  nailed  to  four  posts  set  in  the  ground, 
and  covered  with  the  same  material.  It  had  no  cellar  or  founda- 
tion, and  the  rough  plank  tloor  had  numerous  apertures.  There 
was  but  a  single  room,  with  no  partitions,  but  one  door,  which 
was  on  the  south  side,  and  near  the  southwest  corner,  and  but 
one  window,  which  was  on  the  west  side.  The'  structure  was 
situated  in  the  woods,  remote  from  a  highway,  and  was  reached 


PEOPLE  V.  COREY. 


489 


'g- 


by  a  path  leading  through  a  pasture.  At  the  time  of  the  affray 
an  okl  stove  stood  opposite  the  door,  and  in  the  northwest  corner 
vas  a  cupboard  made  of  rough  boards.  On  the  south  si(k^  of  the 
room,  and  about  four  feet  east  of  the  door,  was  a  slielf,  near 
which  was  a  butcherknife  belonging  to  James  George,  thrust 
in  a  crack;  and  on  the  shelf  was  a  common  pockctknifo,  Avith 
two  blades,  which  belonged  to  one  of  Webb's  chiklren,  A  table, 
some  chairs,  and  two  or  throe  old  beds  resting  on  the  floor,  with- 
out bedsteads,  completed  the  furniture.  The  beds  consisted  of 
straw  ticks  covered  with  soiled  and  ragged  bedclothing,  and  the 
room  and  all  things  in  it,  including  the  people,  were  described 
by  a  physician  as  extremely  filthy.  In  this  I'oom  Orson  Webb, 
Sarah,  his  wife,  his  two  daughters,  Susan  and  Libbie,  aged  re- 
spectively sixteen  and  eighteen,  and  four  younger  ehildi'cn,  be- 
sides James  George  and  the  defendant  (ten  human  beings  in 
all),  lived  and  slept.  These  persons,  with  Cora  Bennett,  a  niece 
of  Mrs.  Webb,  were  present  when  the  crime  in  question  is  al- 
leged to  have  been  committed. 

The  defendant  was  attached  to  Susan  Webb,  and  had  some 
feeling  towards  George  on  accoimt  of  his  attentions  to  her. 
Each  had  recently  made  threats  against  the  other  on  her  ac- 
count, although  they  had  slept  together,  and  had  worked  to- 
gether in  peace  that  fall.  The  threats  made  by  George,  although 
loss  frequent,  were  not  less  significant  than  those  made  by  the 
defendant;  for,  but  three  or  four  days  before  the  tragedy,  he 
said  that,  if  the  defendant  did  not  keep  away  from  his  girl 
(Susie  Webb),  he  would  cut  his  heart  out  with  the  knife  that 
he  held  in  his  hand  at  the  time.  About  three  hours  before  the 
affray  the  defendant  accepted  the  invitation  of  George  to  eat 
supper  with  him,  and  the  two  men  ate  and  talked  together  as 
friends.  During  the  afternoon  Webb  and  the  defendant  had 
been  engaged  in  erecting  a  woodshed  in  the  form  of  a  lean-to, 
and  banking  up  the  shanty  for  winter.  They  had  a  jug  of  beer, 
which  Avas  consumed  by  them,  with  the  help  of  Cora  Bennett 
and  Susan  and  Libbie  Webb.  After  supper,  Susan  suggested 
that  they  have  something  more  to  drink,  and  gave  her  father  a 
dollar  to  go  and  get  it.  lie  went  nearly  two  miles  and  back,  and 
returned  about  ei£,ht  o'clock  in  the  evening  with  another  jug  of 
beer,  containing  a  gallon,  and  two  pints  of  whisky.    During  his 


490 


AMERICAN  CRIMINAL  REPORTa 


absence,  Susan  obtained  from  the  pocket  of  George's  coatj  upon 
his,  suggestion,  a  pint  of  alcohol,  which,  after  being  diluted  with 
wat?r,  was  drunk  by  George,  the  defendant,  and  the  girls.  Half 
of  the  beer  and  whisky  procured  by  Webb  was  drunk  by  the  same 
persons,  aided  by  Mrs.  Webb.  While  every  person  in  the  room 
except  Webb  and  the  younger  children  was  more  or  less  intoxi- 
cated, the  defendant  and  George  drank  the  most,  and  the  latter 
'vf..'  ^^ '  'nost  affected.  The  party  alternated  in  drinking  beer 
and  ,  ?!.;'  dancing  during  the  interval  to  the  music  of  W^ebb's 
violii;;  jic  1.W0  men  being  in  their  shirt  sleeves.  When  "Webb 
returned  with  the  beer  and  whisky,  Libbie  was  already  asleep 
on  one  c "  the  '■  1  on  the  floor,  and,  as  no  explanation  of  the 
fact  was  given,  it  li:-  n  it  difficult  to  infer  why  she  was  overcome 
by  sloep  at  that  early  hour.  Xo  partners  were  taken  nor  sets 
formed  for  the  dance,  which  was  described  as  a  jig  or  skirt 
dance,  and  was  performed  by  ''jumping  about  and  dancing 
around."  After  thus  drinking  and  dancing  for  an  hour  or  more, 
the  orgies  culminated  in  the  transaction  Avhich  is  the  subject  of 
this  appeal.  Shortly  after  nine  o'clock  Cora  Bennett  and  Susan 
were  sitting  or  lying  on  a  bed  on  the  south  side  of  the  room,  and 
George  was  sitting  beside  them.  The  defendant  was  sitting  in 
a  chair  on  the  west  side  of  the  room,  south  of  the  window,  and 
Webb  and  his  wife  sat  north  of  him.  A  lamp  on  the  table  fur- 
nished the  only  light.  Webb  testified  that  the  defendant  said  to 
George,  "Why  can't  you  get  up  and  sit  in  a  chair,  and  not  be 
sitting  there  on  the  floor?"  and  that  George  replied,  "I  am 
doing  no  hurt  here,"  but  finally  got  up  and  began  to  dance  with 
the  little  girl,  Mary.  After  dancing  a  short  time  he  crossed  over 
to  the  west  side  of  the  room,  where  the  defendant  was  sitting, 
had  some  words  with  him,  went  to  the  shelf,  and  stood  there 
with  Susan,  when  the  defendant,  who  was  still  seated,  asked 
him,  "What  are  you  doing  there,  talking  to  that  girl  ?"  George 
replied,  "Ain't  I  a  right  to  talk  to  this  little  girl  ?"  wherfeupon 
the  defendant  said,  "Xo,"  jumped  towards  George,  and  stnick 
at  him ;  but  George  pushed  him  off,  and  the  defenclant  "dodged 
down  to  get  under  his  arm,"  which  was  raised,  and  struck  him 
six  or  seven  times  in  the  side. 

Mrs.  Tyebb  swore  that  during  the  evening  the  defendant  told 
her  that  he  did  not  like  the  Indian,  and  that  he  would  have 


PEOPLE  V.  COREY. 


491 


trouble  with  him ;  that  later,  after  the  two  men  had  had  some 
words,  the  defendant  jumped  up  and  struck  at  George,  who 
"guarded  his  blow  off  and  knocked  him  back  up  against  the 
door,  and  he  came  back  again ;  and  I  did  not  see  what  he  had  in 
his  hand,  but  he  made  a  motion  seven  or  eight  times  at  his  side." 
Susan  Webb  stated  that,  when  the  defendant  spoke  to  George 
about  sitting  on  the  bed  with  the  girls,  George  started  to  get 
up,  but,  apprehending  trouble,  she  took  hold  of  his  arm,  told 
him  to  sit  down  and  not  have  any  fuss,  whereupon  he  became 
quiet.  Shortly  after  that,  George  went  over  to  the  other  side 
of  the  room,  and  then  came  back  to  the  shelf,  Avhile  the  defend- 
ant remained  on  the  west  side.  The  two  men  had  some  words, 
when  the  defendant  arose  from  his  chair  and  jumped  towards 
George,  who  knocked  him  back  against  the  door,  Avhoreupon  she 
saw  the  defendant  make  motions  towards  George  as  if  stabbing 
him.  No  other  eye-witness  of  the  affray  was  sworn,  and  the 
faihire  to  call  Cora  Bennett  was  not  accounted  for,  except  by  the 
suggestion  of  the  defendant's  coimsel,  that  she  was  confined  in 
a  penal  institution.  The  butcherknife  was  not  disturbed,  and 
no  one  saw  either  of  the  men  take  the  other  knife  from  the 
shelf;  but  it  was  seen  there  just  before  George  passed  from  the 
west  side  of  the  room  to  the  shelf,  and  was  not  seen  afterwards. 
The  defendant  was  not  seen  by  the  shelf,  after  the  knife  was 
last  seen  upon  it,  imtil  he  jumped  towards  George  and  was* 
knocked  against  the  door.  The  evidence  tended  to  show  that 
the  defendant's  shirt  and  trousers  were  badly  torn  on  the  oc- 
casion. The  next  morning  one  of  his  eyes  Avas  somewhat  swol- 
len, and  there  was  a  cut  over  it  from  a  quarter  to  a  half  an  inch 
in  length.  Xo  one  saw  the  knife  in  the  defendant's  hands  at 
any  time,  but  after  he  had  made  repeated  motions  towards 
George,  as  if  stabbing  him,  George  sank  to  the  floor;  and  the 
defendant  kicked  at  him,  and  went  out  of  doors.  "Webb,  upon 
discovering  that  George  had  been  stabbed,  followed  the  defend- 
ant out  and  asked,  "AVliat  did  you  do  with  the  knife  that  you 
cut  Jim  with  ?"  and  the  defendant  replied,  *I  threw  it  back  into 
the  bushes.  I  only  stabbed  him  with  the  little  blade.  It  is  only 
a  flesh  wound.  He  will  get  over  it."  He  also  said,  according  to 
Webb's  statement,  "AVhen  I  fight  with  a  man  I  calculate  to  whip 
that  man,  if  I  have  to  kill  him."    Webb  returned  to  the  house. 


ill 


492 


AMERICAN  CRIMLNAL  REPORTS. 


and,  upon  examining  George,  found  eight  wounds,  apparently 
made  witli  the  bhide  of  a  knife,  upon  the  left  side  of  his  body. 
Six  days  later  George  died.  The  defendant,  upon  leaving  the 
house,  went  to  an  adjoining  farm,  where  he  had  worked,  and 
stayed  all  night.  The  next  day,  when  asked  by  an  acquaintance 
where  he  got  the  cut  ove;  the  eye,  he  replied  that  he  got  into  a 
fight  at  Webb's  the  night  before,  an<l  stabl)ed  an  Indian  three 
or  four  times.  He  was  then  told  that  he  had  got  himself  into 
a  scrape,  whereupon  he  left  for  the  city  of  New  York,  where 
he  formerly  resided.  While  there  he  wrote  a  letter  to  Susan 
Webb,  in  which  he  said :  '"Susie,  I  can't  tell  yoii  how  sorry  I  am 
for  getting  in  that  trouble  and  having  to  leave  you ;  but  you  are 
as  much  to  blame  as  I  am,  for,  if  you  had  not  carried  on  the 
way  you  did  that  night,  I  would  not  have  got  a-figh.ting  with 
that  God-damned  Indian;  but  never  mind;  it  may  be  all  for  the 
best,  Susie.  After  I  had  the  trouble  that  night,  I  went  down  to 
Ira  Spaulding's,  and  stayed  there  until  morning  and  was  going 
to  go  to  work  for  him  that  day,  but  I  was  afraid  Jim  would 
get  a  warrant  out  for  me ;  so  I  made  up  my  mind  the  best  thing 
I  could  do  was  to  come  to  Xew  York  until  it  would  blow  over. 
.  .  .  Remember,  Siisie,  I  love  you  with  all  my  heart,  and 
shall  never  forget  the  way  you  treated  me ;  let  it  be  good  or  bad, 
I  eaimot  help  but  love  you.  Remembei*,  also,  that  I  told  you 
tJiat  I  would  kill  any  one  that  ever  tried  to  come  between  us, 
and  so,  Susie,  so  help  me  God,  I  >vill ;  and  that  is  why  I  cut  Jim 
Avith  that  knife.  I  meant  to  kill  him,  and  will,  if  he  ever  comes 
nionkeyina:  around  again  while  I  am  there."  Not  long  after,  on 
being  arrested,  he  asked  if  George  was  dead  yet,  and  was  told, 
"Xo,"  when  he  replied,  ''Well,  if  he  ain't,  he  ought  to  be." 

Eight  incised  Avounds,  such  as  could  have  been  made  by  the 
large  or  the  small  blade  of  an  ordinary  pocketknife,  were  found 
on  the  body  of  George,  only  one  of  which  was  fatal,  and  that 
not  necessarily  so.  The  wound  of  deepest  penetration  was  less 
than  two  inches  in  depth,  so  that  either  the  small  blade  or  slight 
force  must  have  been  used  in  making  the  wounds.  Death  re- 
sulted from  blood  poisoning  caused  by  the  formation  of  pus  in 
the  pleural  cavity,  whioh  was  not  withdrawn,  owing  to  the  un- 
sanitary condition  of  things  in  the  Webb  house,  and  the  danger 
of  operating  without  antiseptic  precautions.     Gcuge  was  a 


PEOPLE  V.  COREY. 


403 


iviiig  the 


etrong,  healthy,  ■woll-dcvolopod  man,  soiiiowliat  given  to  quarrel- 
ing, especially  Avlien  under  the  influence  of  liquor.  Six  wit- 
nesses, acquainte<l  with  his  reputation,  swore  that  it  Avas  that  of 
a  quarrelsome,  fighting  man.  Four  records  of  the  court  of  spe- 
cial sessions  were  read  in  evidence,  showing  that  he  had  been 
convicted  for  drinking  and  fighting.  The  defendant  had  a  hor- 
rid disease,  was  not  as  strong  as  George,  and  was  usually  quiet 
and  peaceable.  On  three  occasifins  ho  had  received  somewhat 
severe  injuries  on  the  toj)  of  the  head,  one  resulting  in  a  frac- 
ture of  the  skull,  which  left  scars  and  a  depression,  with  tender- 
ness under  pressure.  Several  medical  experts,  answering  a 
hypothetical  question,  testified  that  in  their  opinion  he  was  in- 
sane at  the  time  of  the  affray,  but  the  weight  of  medical  testi- 
mony was  the  other  Avav.  Several  witnesses,  includiu";  two  I'us- 
tices  of  the  peace,  testified  that  the  character  of  Orson  Webb  for 
truth  and  veracity  was  bad,  and  that  they  would  not  believe  him 
under  oath ;  but  he  was  sustained  b}'  an  equal  number  of  wit- 
nesses, who  apparently  knew  his  reputation  equally  well.  lie 
was  once  convicted  and  suffered  imprisonment  for  assault  and 
battery,  and  Avas  once  convicted,  upon  his  own  confession,  for 
petit  larceny,  but  was  not  punished. 

The  character  of  the  inmates  of  the  Webb  house,  who  were 
the  only  witnesses  to  give  the  history  of  the  transaction,  the  con- 
dition of  some  of  those  Avitnesses  Avhen  they  saAV  the  affray,  the 
disposition  of  George  to  quarrel  and  fight  Avhen  under  the  influ- 
ence of  liquor,  the  intoxication  of  both  participants  AA'hen  the 
affray  began,  the  fact  that  violence  Avas  used  by  each  toAvards 
the  other,  the  absence  of  any  Aveapon  Avhen  the  trouble  began, 
the  nature  of  the  A\'eapon  used,  and  the  confusion  in  the  minds 
of  the  eycAvitnesses  as  to  Avhat  actually  took  place,  ai*e  important 
facts  to  be  borne  in  mind  in  revicAving  this  case.  The  evidence 
Avarranted  the  jury  in  convicting  the  defendant  of  murder  in 
the  first  degree,  as  there  Avas  some  time  for  deliberation ;  still, 
the  facts  already  mentioned  leave  that  essential  feat\ire  Avithout 
the  support  that  it  might  haA'e  had,  if  the  Avitnesses  and  partici- 
pants had  been  persons  of  a  different  character  and  in  a  differ- 
ent condition.  While  the  defendant  was  the  aggressor  Avhen  he 
sprang  toAvards  George  and  struck  at  him,  there  is  no  evidence 
that  he  then  struck  Avith  a  Aveapon,  or  Avith  anything  except  his 


w 


:    i 


m ;  -^ 


491 


AMERICAN  CRIMINAL  REPORTS. 


=  .  I, 


fist.  The  blow  was  promptly  returned  by  George,  wlio  knockod 
the  defendant  against  the  door,  and  from  that  instant  niitil  the 
end  of  the  affray  the  time  was  very  short.  While  it  was  long 
enough  for  sufficient  deliberation  to  stamp  the  crime  as  murder 
in  the  first  degree,  it  does  not  follow  that  because  there  was  time 
enough  to  deliberate  there  was  in  fact  delil)eration.  The  two 
drunken  men  exchanged  blows,  the  defendant  striking  first,  but 
the  blow  of  the  other  man  being  the  most  effective.  Up  to  this 
time  there  was  no  opportunity  for  the  defendant  to  get  hold  of 
the  knife,  yet  almost  instantly  he  was  plunging  it  into  the  side 
of  his  victim.  Whether  he  snatched  it  from  the  shelf  or  from 
the  hand  of  George,  who  had  had  an  opportunity  to  get  it,  can- 
not with  certainty  be  told.  Whether  it  was  open  or  shut  when 
his  hand  first  clasped  it  is  not  known.  Whether  the  fatal  wound 
was  the  first  or  the  last  inflicted  is  not  disclosed.  The  solution 
of  these  questions  would  reflect  much  light  upon  the  funda- 
mental question  of  deliberation,  yet  they  cannot  be  solved  from 
the  evidence  before  us.  If  it  appears  that  a  man  charged  with 
murder  in  the  first  degree  armed  himself  with  a  deadly  weapon 
before  making  the  fatal  assault,  it  points  strongly  towards  *'« 
deliberate  and  premeditated  design  to  effect  the  death  of  the 
person  killed ;"  but  it  is  quite  different  if  he  first  makes  an  as- 
sault with  his  fist,  and  during  the  struggle  that  follows  seizes 
a  weapon  ready  to  his  hand,  and  at  once  inflicts  a  mortal  wound 
with  it,  for  both  the  shortness  of  the  time  and  the  excitement  of 
the  occasion  make  it  much  less  probable  that  he  acted  with  de- 
liberation, as  it  is  known  in  the  criminal  law.  Still,  previous 
threats  and  subsequent  declarations  as  to  his  intention  have  an 
important  bearing  upon  what  was  passing  through  bis  mind  just 
before  he  inflicted  the  fatal  injury.  As  there  was  a  conflict  in 
the  evidence,  and  opposing  inferences  might  be  drawn  from  the 
facts,  we  do  not  feel  warranted  in  setting  aside  the  verdict  of 
the  jury  for  error  of  fact;  and  we  proceed  to  consider  the  al- 
leged errors  of  law. 

Mrs.  Webb,  during  her  cross-examination,  testified  that  she 
thought  the  shirt  worn  by  the  defendant  was  badly  torn  on  the 
occasion  in  question ;  that  she  had  recently  washed  it,  and  it  Avas 
not  then  torn ;  that  she  saw  him  wearing  it  during  the  evening, 
and  did  not  see  that  it  was  tornj  but  after  the  affray  she  observed 


PEOPLE  V.  COREY. 


405 


tlint  both  sloovos  wore  torn,  nml  that  the  shirt  was  torn  in  other 
j)laco3,  including  the  side  and  undor  the  nrm-'.  She  was  thon 
asked  bv  the  defendant's  counsel:  "You  know  it  was  tt>rn  rijjrht 
there  in  that  quarrel, — in  that  fight?  A.  I  think  most  of  it 
was  torn  in  that  way.  Q.  Did  you  see  this  man  George  after 
lie  had  struck  Corey?  Did  you  see  where  he  grabbed  him, — 
whether  by  the  sleeves  or  by  the  bosom  ?  (Objected  to.  Objec- 
tion sustained.)"  But  the  witness  answered:  "I  didn't  notice. 
Q.  Did  you  observe?  A.  Xo,  sir.  (Objected  to  as  in('oui[)e- 
tent  and  immaterial.  Objection  sustained.)  Q.  Did  you  ob- 
serve whether  he  grabbed  him  or  not?  A.  No,  sir;  I  didn't. 
Q.  You  didn't  observe?  A.  Xo,  sir.  .  .  .  Q.  You  didn't 
observe  just  whether  j\Ir.  Corey  grappled  onto  a  hold  of  this 
man, — you  didn't  observe,  did  you  ?  A.  Xo,  sir.  .  .  . 
Q.  Y^'ou  say  you  didn't  observe  whether  he  grabbed  him  or  not  ? 
(Objected  to.)  A.  Xo,  sir;  I  didn't."  The  court  then  re- 
marked to  counsel,  "If  you  are  simply  talking  loud  to  drown  it. 
fihe  certainly  said  that  he  didn't  grab  him  at  all,"  and,  turning 
to  the  witness,  asked,  "How  do  you  understand  it  ?"  and  she  an- 
swered, "He  asked  if  I  knew  whether  he  grabbed  or  not."  The 
court  then,  turning  to  the  jury,  asked,  "Did  you  hear  her  say 
that  he  didn't  grab  him  at  all  ?  Did  you  hear  that,  any  of  you  ?" 
and  a  juror  answered,  "I  heard  that."  Upon  being  further 
cross-examined,  the  witness  testified  that  she  saw  George  strike 
defendant  and  knock  him  back  against  the  door,  or  against  the 
west  side  of  the  house,  and  subsequently  she  was  asked :  "Xow, 
did  somebody  suggest  to  you  that  you  keep  back  this  idea  that 
George  struck  Corey,  and  that  before  the  former  trial, — that 
you  not  tell  of  that  ?  A.  Xo ;  I  think  I  told  it  here,  didn't  I  ? 
Q.  Didn't  some  one  tell  you  that  you  could  keep  that  back? 
That  is  the  fact  about  it,  isn't  it,  Mrs.  Webb?  A.  I  believe 
there  was  a  person  said  I  wasn't  obliged  to  swear  to  that,  unless 
I  had  a  mind  to,  if  it  wasn't  called  for.  Q.  That  was  before 
you  were  sworn  the  other  time,  was  it  ?  A.  When  I  was  down 
to  the  house.  Q.  Did  you  keep  it  back  on  the  former  trial  ? 
A.  I  don't  know  whether  I  swore  to  it  at  that  time  or  not.  I 
am  swearing  to  it  now.  Q.  Don't  you  know  that  you  kept  it 
back  the  other  time,  and  didn't  tell  it  ?  Don't  you  know  you 
did  ?    A.  Yes.    Q.  You  did  it  on  that  advice  ?    A.  He  said,  if  it 


L  # 


;  ( 


490 


AMERICAN  CRIMINAL  REPORTS. 


llii! 


wasn't  call('<l  for,  I  shduMn't  nioiitir'i  it.  The  cniirt:  A\'liiil 
wan  it, — about  lii.s  tlirowiiig  up  luul  pushing  tlic  ludiim  back 
against  the  door  ?  Q.  Pusliing  bini  and  striking  bini  ^  A.  Strik- 
ing biui.  Q.  You  kept  it  back  the  other  time?  A.  1  believe  I 
(lid.  I  don't  know  whether  I  did  or  not."  Thereupon  the  court, 
addressing  one  of  the  coimsel  for  the  defendant,  said:  "I)i>  you 
say,  Mr.  Jiriggs,  that  she  kept  it  back  entirely?  I  luiderstiind 
that  the  minutes  show,  and  my  recollection  would  be,  that  she 
did  swear  that  George  struck  him."  Shortly  afterwards  the 
court  again  interposed  and  said :  "The  court  has  taken  the  posi- 
tion that  she  did  sweav  to  it  ujKm  the  other  trial.  1  think  she 
is  mistaken  about  it ;  I  think  she  is  mistaken  about  her  swearing 
to  it;  I  am  not  going  to  spend  any  time  to  hunt  up  that  testi- 
mony; it  is  my  recollection  of  it,  and  it  is  about  enougli  of  i 
ftir  just  this  time."  Except  as  stated,  it  did  not  appear,  either 
by  the  minutes  or  in  any  other  way,  that  the  witness  so  testified 
upon  the  first  trial. 

Thus,  upon  two  occasions  the  learned  justice  presiding  inad- 
vertently stated  his  own  recollection  as  to  a  material  fact,  and 
was  mistaken  both  times.  On  the  first  occasion  the  judge  f*^at(jd 
that  the  witness  had  sworn  one  wav,  when  she  had  in  fact  sworn 
auother.  Whether  George  grabbed  the  defendant  after  knock- 
ing him  against  the  door  just  before  the  stabbing  took  place  was 
important  upon  the  question  of  deliberation,  as  it  tended  to  show 
a  struggle  and  a  fight.  There  is  a  marked  diiTcrenco  between 
stating  that  George  did  not  grab  the  defendant  at  all,  and  that 
the  witness  did  not  see  whether  he  grabbed  him  or  not;  for  the 
former,  if  the  witness  was  to  be  believed,  took  the  element  of  a 
fight  out  of  the  case,  to  a  great  extent.  The  witness  had  repeat- 
edly testified  that  she  did  not  notice  whether  George  gi'abbcd 
the  defendant  or  not,  and  she  did  not  at  any  time  testify  that 
George  did  not  grab  him  at  all,  yet  the  justice,  with  all  the 
Aveight  of  his  hi;,a  character  and  impartial  position,  declared 
that  her  testimony  was  that  "he  didn't  grab  him  at  all."  Upon 
appealing  to  the  jury  for  confirmation,  one  of  them  stated,  in 
substance,  that  he  heard  the  witness  testify  that  George  did  not 
grab  tlie  defendant  at  all.  According  to  the  record  before  us, 
both  court  and  juror  were  mistaken,  and  it  is  not  probable  that 
any  one  of  the  other  eleven  jurors,  under  the  circumstances, 


PEOPLE  V.  COREY. 


407 


MouUl  think  tlint  the  cvidciioo  of  the  witness  wns  other  thtin  as 
the  court  nud  the  twelfth  juror  ha<l  stated  it.  It  was  nn  unin- 
tentional but  actual  perversion  of  the  witness'  testimony,  under 
circumstances  calculated  to  help  the  People  and  Inirt  the  de- 
fendant. The  torn  shirt  indicated  that  George  had  sei/.ed  the 
defendant,  but  the  witness  was,  in  effect,  made  to  say  that  this 
did  not  take  place. 

On  the  second  occasion,  when  an  erroneous  statement  from 
the  bench  went  before  the  jury  as  evidence,  the  witness  had  vir- 
tually admitted  that  she  was  guilty  of  suppi'cssing  evidence  on 
the  former  trial.  This  reflected  on  her  candor,  if  she  was  cor- 
rect, but  not  if  the  court  was  correct.  His  statement  tended  to 
relieve  an  important  witness  of  a  peiious  imputation  affecting 
her  credibility.  It  was  not  proper  for  the  court  to  tell  the  jury 
what  the  witness  had  sworn  to  upon  the  previous  trial,  when 
there  was  no  evidence  that  she  liad  so  sworn.  Such  a  statement 
to  the  jury  should  be  made  only  by  a  sworn  witness.  The  trial 
judge  had  no  right  to  state  his  recollection  of  what  the  witness 
had  sworn  to  upon  the  former  trial,  for  it  was  not  legal  evidence 
of  the  fact.  The  statement  of  the  court  not  only  took  the  place 
of  the  testimony  of  the  witness,  but  it  was  directly  the  reverse 
of  what  the  witness  had  in  fact  testified  to.  It  went  to  the  jury 
without  the  sanction  of  an  oath,  yet  came  through  such  a  chan- 
nel as  to  have  more  effect  than  the  statement  of  almost  any  wit- 
ness under  oath.  It  was  to  a  certain  extent  a  certificate  of 
good  character  to  a  leading  witness,  who  had  shown  that  she  did 
not  deserve  it.  A  newspaper  paragraph  would  have  been  equally 
competent  and  less  dangerous. 

We  have  recently  held  that,  even  on  the  trial  of  a  civil  action, 
a  statement  by  the  trial  judge,  made  to  the  jury,  of  his  personal 
recollection  of  what  occurred  at  a  previous  trial  in  respect  to  a 
material  fact,  was  reversible  error,  and  that  it  was  not  cured 
by  instructing  the  jury  to  dismiss  the  statement  from  their 
minds.  Brooks  v.  Rochester  By.  Co..  156  K".  Y.  244,  252,  50 
N.  E.  Rep.  947.  We  repeat  with  greater  emphasis  in  this  action, 
because  it  involves  life  and  death,  the  following  language  used 
by  Judge  O'Brien  in  that  case,  which  involved  only  a  right  of 
property,  viz. :  "It  will  not  detract  in  any  degree  from  the  high 
character  of  the  learned  judge  to  say  that  be  did  not  at  the  mo- 
V0L.XI— 33 


ris'  \\: 


0"-  ; 


R.''  .'Mi!; 


?»-;(( 


n 


'I'l 


40S 


AMERICAN  CRIMINAL  REPORTS. 


;!  ;1 


luont  fully  appreciate  the  importance  of  bis  remarks,  or  the 
probable  influence  which  would  be  given  to  them  by  the  jury. 
He  was  about  to  submit  to  them  a  disputed  question  of  fact  upon 
the  evidence,  and  he  virtually  threw  into  the  scale  against  the 
defendant  all  the  weight  of  his  impartial  position  and  unbiased 
recollection  upon  tliat  very  question.  There  was  no  longer  any 
chance  for  the  defendant  to  succeed,  at  least  upon  that  issue." 
We  think  that  the  statements  inadvertently  made  in  the  hurry 
of  this  long  trial  by  the  learned  justice  below  are  presumed  to 
have  been  injurious  to  the  defendant.  Whether  they  in  fact 
changed  the  result  or  not,  we  cannot  say  judicially  that  they  did 
not  affect  it.  He  had  the  right  to  have  none  but  legal  evidence 
received  against  him,  yet  illegal  evidence  was  received,  of  a 
character  so  material  and  important  that  we  cannot  say  to  what 
extent  it  mav  have  inflxienced  the  verdict.  Under  all  the  cir- 
cumstances,  and  especially  in  view  of  the  somewhat  close  ques- 
tion of  fact  on  the  subject  of  deliberation,  we  think  these  errors, 
although  not  excepted  to,  are  too  serious  to  be  disregarded. 

The  ante  mortem  statement  of  the  deceased,  made  four  days 
before  he  died,  was  read  in  evidence  on  behalf  of  the  People,  in 
which  he  declannl,  in  substance,  that  the  defendant  attacked 
him  without  provocatfon  or  excuse,  and  inflicted  the  wounds  in 
question  upon  him.  The  defendant's  counsel  objected  to  this 
evidence  as  incompetent,  improper,  and  hearsay ;  and  they  now 
urge  that  dying  declarations,  although  competent  at  common 
law,  are  no  longer  competent,  because  the  Code  of  Criminal  Pro- 
cedure, in  prescribing  the  rights  of  a  defendant  in  a  criminal 
action,  provides  that  he  is  entitled  "to  be  confronted  with  the 
witnesses  against  him  in  the  presence  of  the  court,"  except  in 
certain  eases  not  now  material.  Code  Crim.  Pro.,  §  8,  par.  3. 
We  do  not  think  the  legislature  intended  to  abolish  the  rule  gov- 
erning the  admission  of  dying  declarations,  and  such  certainly 
has  not  been  the  understanding  of  the  profession  or  the  courts. 
We  are  not  aware  that  this  question  has  ever  been  raised  before 
in  this  State,  and  yet  the  Criminal  Code  has  been  in  force  for 
nearly  twenty  years,  and  the  Revised  Statutes,  which  contain 
a  similar  provision,  for  nearly  seventy  years.  1  R.  S.  94,  §  14. 
The  right  of  the  accused  to  be  confronted  with  the  witnesses 
against  him  has  always  been  a  part  of  the  bill  of  rights,  and  yet 


PEOPLE  V.  COREY. 


499 


vs,  or  the 
the  jury, 
fact  ii])on 
?ainst  the 
unbiased 
)nger  any 
at  issue." 
the  hui'i'v 
'sunied  to 
y  in  fact 
thcv  did 
evidence 
i'ed,  of  a 
y  to  wliat 
1  tlie  eir- 
ose  ques- 
se  errors, 
rded. 
our  days 
'eoplc,  in 
attacked 
ounds  in 
i  to  this 
:hey  now 
common 
inal  Pro- 
criminal 
with  the 
xcept  in 
,  par.  ;}. 
nile  gov- 
lertainly 
i  courts. 
J  before 
orce  for 
contain 
4,  §  14. 
itnesses 
and  yet 


dying  declarations  have  been  received  in  evidence  for  time  out 
of  mind.  The  legislature  doubtless  intended  to  confer  upon  a  de- 
fendant in  a  criminal  action  the  right  to  be  confronted  with  any 
living  witness  against  him.  It  is  upon  this  ground  that  the  objec- 
tion to  the  introduction  of  such  dechirations  in  evidence  against 
a  defendant,  based  on  his  constitutional  right  to  be  confronted 
witli  the  witnesses  against  him,  has  been  iiniformly  overrnled  in 
those  jurisdictions  where  such  constitutional  provisions  are  in 
force.  It  is  invariably  held  that  the  deceased  is  not  a  witness, 
within  the  meaning  of  such  a  provision  or  of  the  bill  of  rights, 
and  that  it  is  sufficient  if  the  defendant  is  confronted  with  the 
witness  who  testifies  to  the  declaration.  Matiox  v.  United 
States,  15G  U.  S.  237,  240,  15  Sup.  Ct.  337;  Brown  v.  Com- 
viomoealth,  73  Pa.  St.  321,  320 ;  Campbell  v.  State,  11  Ga.  353 ; 
People  V.  Glenn,  10  Cal.  32 ;  State  v.  DicJanson,  41  Wis.  299, 
302 ;  Bobbins  v.  State,  8  Ohio  St.  131 ;  1  Bishop's  Crim.  Pro., 
§  1208;  Greenleaf's  Ev.,  §  156;  1  McClain  on  Crim.  Law, 
§425. 

The  court,  in  its  charge  to  the  jury  upon  the  subject  of  dying 
declarations,  said  lo  them  that  "it  is  the  experience  of  mankind 
that  the  premonition  of  immediate  death,  from  which  there  is 
no  hope  of  recovery,  is  always  sufficient  to  influence  persons  so 
situated  to  speak  the  truth."  The  court  cautioned  the  jury  not 
to  give  as  much  weight  to  such  evidence  as  if  the  same  statement 
had  been  testified  to  by  the  deceased  when  in  health  and  subject 
to  cross-examination.  He  also  left  it  to  them  to  decide  whether 
the  deceased  was  without  hope  of  recovery  when  he  made  the 
declarations,  and  told  them  that  such  declarations  were  to  be 
taken  with  great  caution,  as  they  might  be  misunderstood,  or 
might  have  been  made  in  response  to  suggestive  questions.  The 
instruction,  however,  above  quoted,  was  left  substantially  un- 
changed. In  People  v.  Kraft,  91  Hun,  474,  47G;  affirmed, 
148  N".  Y.  631,  43  K  E.  Rep.  80,  it  was  said  by  the  Supreme 
Court  that  "it  is  not  the  experience  of  mankind  that  the  appre- 
hension of  immediate  death,  from  which  there  is  no  hope  of  es- 
cape, is  always  sufficient  to  induce  persons  so  situated  to  speak 
the  truth.  Criminals  convicted  on  the  most  convincing  evidence 
often  assert  their  innocence  while  standing  face  to  face  with 
their  executioners."    We  held  in  that  case  that  it  was  reversible 


U^ 


t  • 


'S 


500 


AMERICAN  CRIMINAL  REPORTS. 


i    I 


'ill! 


■A  i  i 


I  ' 


f  !  K;|n!|!! 


•11  i'jl 


error  to  charge  the  jury  that  a  dying  declaration  should  bo 
"given  all  the  sanction  of  evidence  which  the  law  can  give  to 
evidence."  Dying  declarations  are  received  from  necessity,  in 
order  to  prevent  a  failure  of  justice,  upon  the  theory  that  the 
belief  of  impending  death  is  equivalent  to  an  oath.  The  rule, 
as  we  understand  it,  goes  no  further.  The  fear  of  piinishmont 
by  the  law  for  perjury  furnishes  no  safeguard  that  the  declarant 
will  speak  the  tmth,  and  hence  such  evidence  has  no  sanction 
except  a  I'clief  in  responsibility  after  death.  All  men,  however, 
do  not  entertain  that  belief.  Moreover,  as  was  pointed  out  by 
Judge  Gray  in  People  v.  Kraft,  supra,  the  power  of  cross-ex- 
amination, which  is  wholly  wanting,  is  quite  as  essential  in  the 
process  of  eliciting  the  truth  as  the  obligation  of  an  oath.  "Wo 
recently  reversed  a  judgment  of  death  in  a  case  in  which  the 
dying  declaration  of  the  deceased  seemed  utterly  unreliable. 
People  V.  Carhone,  150  X.  Y.  413,  415,  51  K  E.  Rep.  23. 
Coui'ts  of  high  standing  have  held  that  an  instruction  that  dying 
declarations  are  to  receive  as  much  credit  as  testimony  given 
under  oath  in  open  court  is  erroneous.  Slate  v.  Van  Sant,  80 
Mo.  G7,  77 ;  State  v.  Mathes,  90  Mo.  571,  573,  2  S.  W.  Rep. 
800;  Lambeth  v.  State,  23  Miss.  322,  359.  It  has  happened 
that  a  dying  declaration  accusing  the  defendant  made  one  day 
was  contradicted  by  another  dying  declaration  of  the  same  per- 
son made  on  a  subsequent  day,  stating  that  the  defendant  "did 
not  do  it."  Moore  v.  State,  12  Aia.  704,  40  Am.  Dec.  270.  So 
dying  declarations  have  been  shown  to  be  positively  untrue. 
li7/(7e  V.  State,  30  Tex.  App.  052,  18  S.  W.  Rep.  402.  Tlie 
elementary  writers  upon  the  subject  dwell  upon  the  infirmities 
of  this  kind  of  evidence,  and  all  authorities  agree  that  the  credi- 
bility of  the  declaration  is  wholly  for  the  jury.  Underhill  on 
Criminal  Evidence,  §  110;  3  Rice  on  Evidence,  330;  Roscoe's 
Criminal  Evidence,  35.  The  learned  trial  judge  virtually  told 
the  jury  that  if  the  deceased  had  no  hope  of  recovery  when  he 
made  the  declaration,  and  was  correctly  reported,  according  to 
the  experience  of  mankind  he  spoke  the  truth.  It  is  true  that 
he  directed  them  to  consider  the  evidence  which  tended  to  cor- 
roborate or  contradict  the  statement  made,  and  left  it  to  them 
to  say  whether  in  fact  the  statement  was  true  or  not,  and 
whether  the  general  proposition  laid  down  was  correct  or  not  in 


PEOPLE  V.  COREY. 


501 


■'>''> 


tlio  case  in  hand.  In  other  words,  he  allowed  the  jury  to  find 
that  in  this  particular  instance  the  deceased  did  not  speak  the 
truth,  notwithstanding  the  circumstances  surrounding  him  had 
always  been  found  sufficient  to  influence  other  persons  so  situ- 
ated to  speak  the  truth.  This  was  equivalent  to  saying  that,  if 
they  should  find  this  dying  declaration  untrue,  it  would  be  the 
first  instance  on  record,  yet  they  might  so  find  if  they  saw  fit. 
AVe  think  that  the  main  proposition  laid  down  by  the  court 
upon  the  subject,  even  when  considered  with  what  preceded  and 
followed  it,  was  erroneous  and  tended  to  injure  the  defendant. 

Evidence  was  given  in  behalf  of  the  defendant  tending  to 
show  that  Orson  Webb,  during  his  attendance  as  a  witness  for 
the  People,  had  stated  that  he  was  going  to  swear  the  defendant 
to  hell;  that  a  bystander  said,  "That  is  a  pretty  hard  saying  for 
the  main  witness  in  the  case  for  the  People;"  and  that  Webb 
replied,  "I  am  going  to  do  it,  any  way."  Webb,  in  a  guarded 
manner,  denied  this.  The  coiirt  was  asked  to  charge  the  j\iry 
that  they  had  the  right  to  take  this  declaration  into  account  in 
passing  xipon  the  weight  of  Wel)b's  evidence ;  but  the  court  re- 
plied, "I  have  called  their  attention  to  every  fact  that  they 
have  a  right  to  take  into  consideration,  whatever  he  said  on  the 
subject  connected  with  the  trial."  In  fact,  the  court  had  not  in 
fuy  way  called  the  attention  of  the  jury  to  the  subject  of  the 
threat  made  by  Webb.  He  had,  however,  directed  their  attention 
to  the  evidence  tending  to  impeach  and  sustain  the  character  of 
Webb,  and,  among  other  things,  had  said  to  them:  "Xow,  of 
course,  it  is  true  that,  while  it  is  not  always  safe,  still  it  is  true 
that  there  are  men  who  will  engage  in  the  commission  of  petty 
crimes,  and  yet  you  may  rely  upon  their  testimony,  when  that 
testimony  is  disconnected  with  any  crime  of  wliich  they  ai'e 
guilty  or  with  which  they  are  charged;  and  you  have  the  right 
to  take  into  consideration  all  the  evidence  which  was  given  by 
the  witness  Stimson,  who  swears  that  this  man's  credit  is  such 
that  he  is  fairly  entitled  to  consideration.  You  have  a  right  to 
take  into  consideration  tliat  when  he  was  arrested  for  taking 
cucumbers  from  some  place,  where  it  is  claimed  that  he  had  had 
the  man  arrested  for  selling  liquor  to  a  minor,  when  he  went 
before  the  magistrate  he  confessed  his  guilt,  and  that  he  was 
convicted.    Xow,  is  such  a  man  as  that  liable  to  tell  the  truth  ? 


f>  ';'''i! 


M    !i 


'^ 


!3r 


ii    \: 


I 


502 


AMERICAN  CRIMINAL  REPORTa 


Do  you  believe  what  he  says  ?  Gentlemen,  yoii  have  a  right  to 
take  into  consideration  the  evidence  of  the  balance  of  the  Webb 
family  as  to  this  transaction  there  at  the  house,  and  see  whether 
they  corroborate  the  testimony  which  he  has  given.  If  he  is 
fully  corroborated,  you  have  the  right  to  take  that  into  consid- 
eration for  the  purpose  of  seeing  whether  he  is  worthy  of  be- 
lief. Gentlemen,  you  have  the  right,  and  it  is  your  duty,  to 
take  into  consideration  the  character  and  standing  and  intelli- 
gonce  and  respectability  of  all  the  witnesses  in  the  case,  from 
the  highest  to  the  lowest."  While  the  court  thus  submitted  to 
the  jury  the  credibility  of  Webb  in  a  general  way,  he  did  not 
mention  the  threat,  which  was  of  great  importance,  because  it 
indicated  a  strong  bias  against  the  defendant.  In  response  to 
the  request  made,  he  did  not  decline  to  charge  ftirther  upon 
the  subject  than  he  had  already  charged,  but  virtually  stated 
that  he  had  called  the  attention  of  the  jury  to  every  fact  that 
they  had  a  right  to  take  into  consideration  as  affecting  Webb's 
credibility.  This,  we  think,  was  error,  because  the  jury  clearly 
had  a  right  to  take  the  threat  into  account,  and  should  have  been 
permitted  to  do  so. 

It  is  true  that  none  of  these  errors  was  challenged  by  an  ex- 
ception, but,  under  the  humane  statute  governing  ouv  j)<)\vers  in 
capital  cases,  an  exception  does  not  stand  between  life  and 
death.  We  are  authorized  to  order  a  new  trial  when  we  are  sat- 
isfied that  the  verdict  was. against  the  weight  of  evidence  or 
against  law,  or  that  justice  requires  a  new  trial,  even  if  no  ex- 
ception was  taken  in  the  court  below.  Code  Cr.  Pro.,  §  52S ; 
PeopJe  V.  Barberi,  149  X.  Y.  250,  278,  43  X.  E.  Rep.  0;]5 ; 
People  V.  Leonard,  143  X.  Y.  300,  307,  38  X.  E.  Rep.  372. 
While  we  are  required  to  give  judgment  without  regard  to  tech- 
nical errors  or  defects  which  do  not  affect  the  substantial  rights 
of  the  parties,  we  cannot  say  in  this  case  that  tlie  errors  were 
technical,  or  that  the  defects  did  not  affect  a  substantial  right 
of  the  defendant.  Id.,  §  542.  The  great  power  intrusted  to 
us  of  reversing  without  an  exception  should  be  cautiously  exer- 
cised, but  it  was  given  to  be  used,  and  it  should  be  used,  when- 
ever we  are  satisfied  from  the  record  that  justice  requires  a  new 
trial.  In  the  interest  of  the  People,  as  well  as  the  defendant,  it 
should  be  exercised  when  the  question  of  fact  as  to  gni\t,  or  the 


Jii 


PEOPLE  V.  COREY. 


503 


degree  of  giiilt,  is  close,  and  there  is  a  reasonable  probability 
that  the  error  affected  the  result.  A  multitude  of  rulings,  made 
without  much  chance  for  reflection,  during  a  protracted  and 
closely-contested  trial,  is  apt  to  result,  and  perhaps  of  necessity 
must  result,  in  some  errors  of  law ;  but,  when  the  percentage  is 
so  small  that  another  trial  would  not  be  apt  to  reduce  it,  a  new 
trial  should  not  be  ordered,  unless  upon  the  facts.  When,  how- 
ever, the  errors,  even  if  not  excepted  to,  are  so  grave  and  numer- 
ous as  to  satisfy  the  court  that  the  defendant  has  not  had  a  fair 
trial,  under  all  the  circumstances,  the  verdict  should  be  set 
aside.  Without  further  discussion,  Ave  close  our  review  in  the 
words  of  Judge  JMaktin,  used  in  rendering  judgment  on  the 
former  appeal  in  this  action:  ''After  carefully  examining  and 
considering  the  evidence,  the  rulings,  and  the  charge  contained 
in  the  record  before  us,  we  have  become  satisfied  that  justice 
requires  us  to  grant  the  defendant  a  new  trial  in  this  action. 
In  reaching  this  conclusion,  we  have  not  been  wholly  controlled 
by  any  one  of  the  questions  discussed,  but  upon  a  consideration 
of  them  all  we  have  been  led  irresistibly  to  the  conclusion  that 
in  the  furtherance  of  justice  a  new  trial  should  bo  granted." 
The  judgment  should  be  reversed  and  a  new  trial  ordered. 


IP 


n 


■Vnr 


IIaigiit,  J.  (dissenting).  There  is  really  no  dispute  about 
the  main  and  controlling  facts  in  this  case.  Whatever  conflict 
exists  pertains  to  minor  details,  which  could  not  and  ought  not 
to  change  the  result.  Suppose  George  did  catch  hold  of  the  de- 
fendant's shirt  and  tear  it  while  receiving  the  stabs  which  caused 
his  death,  under  the  evidence,  it  could  have  occurred  at  no  otlicr 
time.  I  fail  to  see  how  this  fact,  if  such  it  be,  tends  to  relieve 
the  defendant,  or  to  show  an  absence  on  his  part  of  motive  and 
deliberation.  IFis  declarations  before  the  act  and  his  written 
statements  afterwards  show  quite  conclusively  what  his  motive 
and  intentions  were.  If  this  case  was  involved  in  any  doubt, 
I  should  heartily  join  with  rnv  associates  in  the  exercise  of  a 
discretion  to  award  a  new  trial.  But,  viewing  the  case  as  one 
in  which  the  essential  and  controlling  facts  are  without  dispute, 
I  think  we  should  disregard  the  technical  errors  and  defects 
pointed  out  and  affirm  the  judgment. 


i^ 


X 


504 


AMERICAN  CRIMINAL  REPORTS. 


;!^'L= 


■f     ^ 


m 


Vann,  J.,  reads  for  reversal  of  judgment  and  granting  now 
trial;  Pakker,  C.  J.,  and  O'Buien,  Bartlett,  and  Maktix, 
JJ.,  concur;  Haigiit,  J.,  reads  for  affirmance  of  judgment,  and 
Gray,  J.,  votes  for  affirmance. 

Judgment  reversed,  and  new  trial  granted. 

Note  (by  H.  C.  G.)- — Inferential  indorsement  of  witnesses  hy  the 
judge. — In  the  current  homicide  case  of  State  v.  Staley,  45  W.  Va.  792 
(1899),  32  S.  E.  Rep.  198,  physicians  had  testified,  on  behalf  of  the  de- 
fendant, as  to  the  treatment  of  the  wounds  of  the  deceased,  being  in 
opposition  to  the  evidence  of  Dr.  Burgess  and  others  who  had  operated 
upon  the  deceased.  Subsequently,  the  court,  in  discussing  a  question 
of  evidence  in  the  hearing  of  the  jury,  referred  to  Dr.  Burgess  by  way 
of  illustration,  and  spoke  of  him  as  a  man  of  unquestioned  Integrity. 
These  remarks  were  excepted  to,  as  tending  to  disparage  the  testimony 
of  the  defendant's  witnesses.    In  its  opinion  the  Supreme  Court  said: 

"The  courts  have  ever  been  exceedingly  careful  of  the  province  of 
the  jury  In  the  trial  of  cases.  In  McDowell  v.  Crawford,  11  Grat.  40.5, 
Judge  Moncure  quotes  approvingly  1  Rob.  Prac.  338-344,  where  the  cases 
are  collected,  and  says:  'They  evince  a  jealous  care  to  watch  over  and 
protect  the  legitimate  powers  of  the  jury.  They  show  that  the  court 
must  be  very  careful  not  to  overstep  the  line  which  separates  law  from 
fact.  They  establish  the  doctrine  that,  when  the  evidence  is  parol, 
any  opinion  as  to  the  weight,  effect,  or  sufficiency  of  the  evidence  sub- 
mitted to  the  jury,  any  assumption  of  a  fact  as  proven,  or  even  an 
intimation  that  written  evidence  states  matters  which  it  does  not  state, 
will  be  an  invasion  of  the  province  of  the  jury.'  Jiidge  Green,  in  State 
V.  Hurst,  11  W.  Va.  54,  referring  to  those  cases  cited  by  Judge  Mon- 
cure, says  they  were  all  civil  cases,  and  that  'there  is  and  ought  to  be 
a  distinction  between  the  trial  of  civil  and  criminal  cases  in  many  im- 
portant particulars,'  and  continues:  'If  the  province  of  the  jury  In  a 
criminal  case  may  be  allowed  to  be  invaded,  the  liberty  and  lives  of 
the  citir-ens  would  not  be  safe.  In  times  of  peril,  when  commotions  in 
the  State  exist,  untrammeled  jury  trials  are  the  greatest  safeguard  of 
the  citizens.  If,  in  a  civil  case,  it  is  error,  for  which  the  verdict 
should  be  set  aside  and  the  judgment  revoked,  for  the  court  to  make  a 
remark,  in  the  presence  of  the  jury,  calculated  to  mislead  them,  or 
calculated  to  cause  them  to  give  more  or  less  weight  to  any  testimony 
before  them,  for  much  stronger  reasons  would  it  be  error  to  make  the 
same  remark  in  the  trial  of  a  criminal  case.'  This  subject  is  dis- 
cussed at  some  length  by  Judge  Dent,  In  Neill  v.  Produce  Co.,  38  W. 
Va.  228,  18  S.  E.  Rep.  563,  and  the  cases  there  cited.  The  remarks  made 
by  the  judge  in  this  case,  it  is  true,  were  by  way  of  illustration;  but 
unfortunately,  for  the  purpose  of  the  illustration,  he  named  one  of  the 
State's  witnesses  who  had  been  exau.'ned  in  the  case,  and  referred  to 
him  as  one  'whose  integrity  is  not  to  be  questioned.'  Suppose  that  he 
were  placed  by  a  party  upon  the  witness  stand  to  testify  as  to  matters 
coming  within  his  professional  conduct  or  employment  (just  as  the 


PEOPLE  V.  COREY. 


505 


nm] 


witness  referred  to  had  testified  In  this  case),  and,  having  so  testified, 
the  opposite  party  were  to  bring  here  two  or  three  witnesses  from  an- 
other county, — say,  from  Huntington, — who  are  entire  strangers  to  the 
people  of  Wayne  county,  and  who,  upon  the  witness  stand,  were  to 
testify  to  their  having  heard  the  said  State's  witness  make  statements 
directly  contradicting  those  made  by  him  upon  the  witness  stand,  etc. 
While  the  judge  did  not  mention  the  names  of  the  supposed  witnesses 
from  Huntington,  yet  it  was  a  fact  that  defendant  had  two  witnesses 
from  Huntington,  summoned  there  and  placed  them  upon  the  stand  to 
testify  in  the  case  as  experts  touching  the  matter  of  the  evidence  given 
by  the  witness  Burgess.  What  was  necessarily  the  tendency  of  the 
remarks  on  the  minds  of  the  jury  but  to  make  an  impression  thereon 
highly  favorable  to  the  testimony  of  the  State's  witness,  who  was  so 
referred  to  by  the  court  as  of  unquestioned  Integrity,  and,  conse- 
quently, his  testimony  was  entitled  to  the  greatest  weight,  while  the 
other  witnesses  were  mentioned  as  entire  strangers,  brought  from  an- 
other county,  whom  the  people  of  Wayne  county  did  not  linow?  The 
tendency  of  the  remark  would  be  to  weaken  their  testimony  In  the 
estimation  of  the  jury,  to  the  prejudice  of  defendant.  Whether  it  af- 
fected their  verdict  or  not  we  cannot  tell.  Taking  the  whole  record 
together,  I  am  inclined  to  the  opinion  that  none  of  the  errors  com- 
plained of  really  affected  the  minds  of  the  jury  prejudicially  to  the 
rights  of  the  defendant;  yet  they  may  have  done  so,  and,  without  such 
errors,  it  is  possible  the  jury  might  have  returned  a  verdict  more 
favorable  to  him.  For  the  reasons  herein  stated,  the  verdict  will  be 
set  aside,  the  judgment  revoked,  and  the  case  remanded  for  a  new 
trial  to  be  had  therein." 

In  Feinl)erg  v.  People,  174  111.,  on  p.  617  (1898),  during  an  alterca- 
tion about  the  cross-examination  of  a  police  oflflcer,  between  the  court 
and  defendant's  counsel,  the  latter  remarked:  "I  object  to  the  ruling 
of  the  court,  and  take  exception.  Your  honor  will  remember  that  in 
the  entire  testimony  of  these  witnesses  on  behalf  of  the  State,  there 
is  no  testimony  whatsoever  tending  to  show  guilt  against  .  .  . 
Felnberg,  except  that  of  motorman  Frellgh,  and  I  can  show  by  this 
officer  that  this  identification  was  procured  by  illegal  means." 

The  court:  "Do  you  mean  to  say,  sir,  that  there  is  no  evidence  here 
to  show  the  guilt  of  the  defendant?    I  say  there  Is  evidence." 

This  was  held  to  be  serious  error;  that  it  came  very  near  being  a 
declaration  by  the  court,  in  the  presence  of  the  jury,  that  the  defend- 
ant was  guilty. 

In  Marzen  v.  People,  173  111.,  on  p.  56  (1898),  which  was  a  homicide 
trial,  the  effort  was  to  get  a  witness  to  identify  an  oil  can  as  the  de- 
fendant's. Finally  the  court  said  to  the  witness:  "What  is  your  best 
judgment  about  that — what  is  the  best  guess  you  can  make  about 
whose  can  it  was?"  Mr.  Elliot:  "I  beg  pardon,  your  honor;  I  shall 
object  to  making  any  guesses."  The  court:  "Perhaps  you  are  right, 
too.  I  would  like  to  have  him  give  us  his  best  judgment  about  that." 
.  .  .  Ans.  "I  can  only  give  that.  I  know  that  can  had  a  bend  on 
top."  The  court:  "7  believe  that  is  the  same  can."  Ans.  "Yes,  sir; 
I  believe  It  Is.  the  way  it  looks  on  the  top  and  the  crack  is  In  it,  and 


n 


I 


1,1  '¥} 


.1  -'i 


Bill 


-'3 


506 


AMERICAN  CRIMINAL  REPORTS. 


if  It  leaks  down  at  the  bottom  then  I  believe  it  is."  Objection,  and 
motion  to  strike  out.  The  court:  "I  will  let  it  stand.  It  may  be  im- 
proper." The  Supreme  Court  said  that  the  remark  (or  question)  of 
the  judge  was  calculated  to  unduly  influence  the  jury  in  the  matter 
of  determining  a  question  of  fact."  The  court  observed  that  the  wit- 
ness did  not  express  an  opinion  that  the  can  was  the  same,  until  after 
the  pointed  suggestion  of  the  court,  and  that  an  Ignorant  man  like  the 
witness  would  doubtless  understand  from  the  judge's  suggestive  ex- 
amination that  he  was  expected  to  identify  the  can.  The  court  might 
have  added  that  a  weak  and  very  doubtful  witness,  under  the  novel, 
exciting  and  trying  ordeal  of  such  an  examination,  might  thus  be  urged 
and  fortified  to  make  an  opinion  positive  which  would  otherwise  have 
been  doubtful.  He  might  feel  that  if  the  judge,  with  his  superior 
knowledge,  experience  and  authority,  considered  the  evidence  of  iden- 
tity sufiicient,  that  he  could  do  the  same. 

It  was  objected  that  no  exceptions  were  saved  in  the  trial  court  as 
to  this  remark.  The  court,  however,  said  that  the  whole  of  the  evi- 
dence of  the  witness  was  objected  to,  and  that  the  remark  of  the  judge 
was  but  a  part  of  an  improper  examination. 

However,  on  principle  it  would  seem  that  it  should  not  be  necessary 
to  take  exceptions  in  order  to  have  such  remarks  of  the  court  reviewed 
on  appeal,  for  the  reasons  (1)  that  the  judge  has  gone  outside  of  his 
legitimate  sphere  of  duty  in  making  them;  (2)  that  the  exception  can 
in  no  way  undo  the  prejudicial  effect  of  such  remarks  and  conduct; 
(3)  that  defendant's  counsel  should  not  be  held  to  the  disagreeable 
duty  of  unnecessary  personal  wrangle  with  the  judge  on  his  personal 
digressions. 


CociiRAx  V.  People. 

175  111.  28—51  N.  E.  Rep.  845. 

Opinion  filed  October  24,  1898. 

Indictme.nt:  When  language  of  statute  is  insu/ftcient — Uncorroborated 
testimony  of  accomplices. 

1.  Uncorroborated  testimony  of  accomplices  is  insufficient  to  sustain 

a  conviction. 

2.  An  indictment  under  section  3  of  division  1  of  the  Criminal  Code 

(Rev.  Stat.  1874,  p.  352),  for  procuring  an  abortion  by  means  of 
an  instrument  the  name  of  which  is  unknown  to  the  grand 
jurors,  must  particularly  describe  the  manner  in  which  such  in- 
strument was  used. 

3.  Section  6  of  division  11  of  the  Criminal  Code,  which  makes  an  in- 

dictment technically  sufficient  which  charges  the  offense  in  the 
language  of  the  statute,  does  not  apply  where  the  statute  so  fails 
to  describe  the  offense  that  the  use  of  the  statutory  language  will 
not  apprise  defendant  of  the  real  offense  with  which  he  is 
charged. 
Mauruder,  J.,  dissenting. 


COCHRAN  V.  PEOPLE. 


507 


"Writ  of  error  to  the  Circuit  Court  of  Cumberland  County ; 
the  Hon.  Frank  K.  Dunn,  Judge,  presiding. 

At  the  August  term,  1897,  of  the  circuit  court  of  Cumberland 
county,  the  grand  jury  returned  an  indictment  of  two  counts 
against  the  plaintiff  in  error,  charging  him  with  the  crime  of 
producing  an  abortion.  At  the  foUoAving  February  term,  189S, 
lie  appeared  before  the  court  and  entered  a  motion  to  quash  the 
in<lictnient  and  each  count  thereof,  which  Avas  overruled.  ITo 
then  entered  his  plea  of  not  guilty,  and  a  trial  was  had  result- 
ing in  a  verdict  of  guilty  "of  an  attempt  to  procure  an  abor- 
tion," and  upon  this  verdict  the  court,  after  overruling  a  mo- 
tion for  a  new  trial,  sentenced  him  to  the  penitentiary. 

The  first  count  of  the  indictment  charges  "that  Dr.  Cliarles 
G.  Cochran,  late  of  the  county  of  Cumberland  and  State  of  Illi- 
nois, on  the  18th  day  of  Xoveniber,  1890,  at  and  in  the  county 
aforesaid,  did  unlawfully  and  feloniously  administer  and  use 
du  one  Stella  Roberts,  then  and  there  being  a  woman  pregnant 
Avith  child,  a  certain  instrument,  the  name  of  which  is  to  the 
grand  jurors  unknown,  with  the  intent  then  and  there  to  pro- 
duce an  abortion  and  miscarriage  of  the  said  Stella  Ivoberts, 
and  (hen  and  there  did  thereby  \inla\vfully  and  feloniously 
cause  the  miscarriage  of  the  said  Stella  Roberts,  it  not  being 
then  and  there  necessary  to  cause  such  miscarriage  for  the  pres- 
ervation of  the  life  of  the  said  Stella  Roberts,  the  said  Charles 
G.  Cochran  then  and  there  well  knowing  that  the  said  instru- 
ment would  produce  such  miscarriage,  and  by  reason  of  such 
miscarriage  she,  the  said  Stella  Roberts,  then  and  there  died," 
etc.    The  second  count  is  substantially  the  same. 

The  only  evidence  of  the  defendant's  guilt  was  the  testimony 
of  David  Wickuam,  a  confessed  accompliee  and  guilty  of  the 
girl's  pregnancy,  who  admitted  on  the  witness  stand  that  he  had 
been  promised  immiinity  from  punishment  if  he  would  testify 
in  the  case,  and  who  was  Avholly  imcorroborated.  He  testified, 
in  substance,  that  he  took  Stella  Roberts  from  her  home  in  Ilut- 
ton  township.  Coles  county,  to  the  defendant's  house  in  Hazel 
Dell — a  village  in  the  southeast  corner  of  Cumberland  county, — 
on  the  18th  day  of  November,  1896;  that  he  had  never  been 
there  before  and  did  not  know  the  doctor,  but  that  the  girl  told 
him  where  to  go;  that  he  there  "had  a  slight  talk  with  him,'' 


.ui 


m 


m 


■■!  3^'.l  ' 


'!(* 


A   > 


^l    s 


i<4  f» '  I 


i  :■    K 


I,  ;fl 


:  ^    ' 


608 


AMERICAN  CRIMINAL  REPORTS. 


the  result  of  which  was  that  ho  drove  with  the  girl  to  a  certain 
place  (IcsigiiateJ  by  the  doctor,  some  three  miles  northwest  of 
the  village,  where  the  defendant  mot  them  and  took  the  girl 
from  the  buggy  to  a  fallen  tree-top,  a  short  distance  from  where 
the  witness  remained  with  the  buggy;  that  he  saw  the  girl  lying 
on  her  back,  the  doctor  being  down  at  hor  feet,  and  that  ho  saw 
him  take  out  of  his  valise  some  bright  instrument;  that  shortly 
afterwards  they  came  back  to  the  buggy,  where  he  paid  the 
doctor  $20  and  then  took  the  girl  back  to  Casey,  in  Clark  county, 
and  from  there  to  hor  home.  lie  does  no't  state  the  distance  l)o- 
tweon  Hazel  Dell  and  Ilutton  township,  Coles  county,  whore 
Stella  Roberts  lived,  but  it  must  be  from  fifteen  to  twenty  miles. 
He  does  not  say  he  saw  any  use  whatever  made  of  the  instru- 
ment, or  that  the  girl  manifested  any  indication  of  pain  or  other 
symptom  of  having  been  operated  upon,  but,  on  the  contrary, 
says  she  never  complained  to  him,  and  when  he  reached  hor 
grandparent's  house,  about  nine  o'clock  that  night,  she  made 
no  complaint, — or  words  to  that  effect. 

The  defendant  testified,  in  his  own  behalf,  that  he  resided  in 
Hazel  Dell,  where  he  had  lived  twenty-five  years,  and  was  a 
practicing  physician  at  that  place.  lie  denied  in  the  most 
emphatic  terms  that  he  knew  or  had  ever  seen  Stella  Roberts^ 
or  produced,  in  any  way  or  manner,  an  abortion  upon  her,  or 
attempted  to  do  so,  or  that  he  had  ever  seen  the  prosecuting  wit- 
jiess,  Wickham,  prior  to  his  indictment.  The  evidence  of  Wick- 
ham  is  contradicted  as  to  the  time  he  and  Stella  Roberts  were 
at  the  defendant's  house  on  the  18th  of  November,  several  wit- 
nesses testifying  to  facts  tending  to  show  that  at  that  hour  the 
doctor  was  not  at  his  house,  but  some  distance  in  the  country, 
visiting  patients.  There  was  some  evidence  that  defendant  had 
theretofore  sustained  a  good  reputation  in  the  neighborhood 
and  vicinity  in  which  he  lived,  but  that  subject  was  not  gone 
into  very  fully. 

Stella  Roberts  died  at  her  grandparent's  house,  in  Coles 
county,  about  November  23,  from  the  effects  of  an  abortion. 
Iler  attending  physician.  Dr.  Franklin,  testified  that  the  abor- 
tion was  produced  by  taking  medicine,  though  this  statement 
was  based  simply  upon  what  the  patient  told  him,  and  his 
smelling  upon  her  breath  the  odor  of  turpentine,  camphor  and 


COCHRAN  r.  PEOPLE 


a  cortniii 
■til  west  of 
the  girl 
0111  wlicro 
girl  lying 
at  he  siiw 
nt  sliortly 

paid  tlio 
k  countv, 
stance  l)c- 
J,  where 
ity  mile-*. 
10  instni- 

or  other 
contrary, 
ched  h(>r 
he  made 

^sided  in 
d  was  a 
ho  most 
Roberts^ 
her,  or 
ing  wit- 
if  Wick- 
•ts  were 
ral  wit- 
lour  tliG 
ionntrv, 
ant  had 
)orliood 
3t  gono 

Coles 
ortion. 
e  abor- 
tement 
tid  his 
5r  and 


5oa 


oil  of  tansy,  all  of  which,  ho  testified,  arc  abortives.  There  was 
other  testimony  offered  upon  the  trial  which  tended  to  corrobo- 
rate the  defendant  and  contradict  the  prosecuting  witness. 

Among  the  grounds  urged  for  a  new  trial  was  that  of  newly 
di.<co\X'red  evidence,  supported  by  affidavits  stating  facts 
.strongly  tending  to  prove  the  defendant's  innocence  and  con- 
tradict the  prosecuting  witness,  Wickham. 

This  writ  of  error  has  been  made  a  supersedeas,  and  a  re- 
versal of  the  judgment  of  sentence  entered  by  the  court  below 
is  insisted  upon  on  several  grounds.    Reversed. 

L.  N.  Briivcr  and  Everhart  <&  Deems,  for  plaintiff  in  error. 
Smith  Misner,  State's  Attorney,  and  E.  N.  Rinchart,  for  the 
People. 

^Ij{.  Justice  Wilkix  delivered  the  opinion  of  the  court. 

AVe  are  unable  to  see  how  the  jury,  upon  tlie  evidence  as  it  is 
presented  to  us,  could  reach  the  conclusion  that  there  was  no 
reasfjnable  doubt  of  the  guilt  of  the  plaintiff  in  error.  In  Iloyt 
V.  People,  140  111.  588,  30  N.  E.  Rep.  315,  and  Campbell  v. 
People,  159  111.  9,  42  X.  E.  Rep.  123,  the  defendants  were  each 
found  giiilty  on  the  uncorroborated  testimony  of  accomplices, 
and  the  judgments  of  conviction  were  reversed  on  the  ground 
that  the  evidence  was  insufficient  to  sustain  the  verdicts.  What 
was  said  in  those  cases  as  to  the  credibility  of  such  testimony 
applies  with  at  least  equal  force  to  the  evidence  of  David  Wick- 
ham in  this  record. 

The  newly-discovered  evidence,  as  shown  by  the  affidavits 
filed,  was  very  important  to  the  defendant,  but  it  was  cumula- 
tive in  its  nature,  and  perhaps  not  of  that  conclusive  character 
which  would  demand  the  granting  of  a  new  trial. 

The  statute  under  which  the  prosecution  was  had  is  section  3 
of  division  1  of  the  Criminal  Code,  as  follows:  "Whoever,  by 
means  of  any  instrument,  medicine,  drug,  or  other  means  what- 
ever, causes  any  woman  pregnant  with  child  to  abort  or  mis- 
carry, or  attempts  to  procure  or  produce  an  abortion  or  mis- 
carriage, unless  the  same  were  done  as  necessary  for  the  preser- 
vation of  the  mother's  life,  shall  be  imprisoned  in  the  peniten- 
tiary not  less  than  one  year  nor  more  than  ten  years ;  or  if  the 


1  f  .'■ 


;u 


It: 


r>/fi  1! 


1  < 


If! 


il 


|!|l! 


510 


AMERICAN  CRIMINAL  REPORTS. 


flciith  of  tlio  mother  results  therefrom,  the  person  proeiirhift'  or 
enusing  the  nhortion  or  miscnrriago  shall  be  guilty  of  murder." 

In  our  opinion,  the  iudietment  is  wholly  insutKcient,  uudiT 
the  foregoing  statute,  to  sustain  the  convietion,  and  the  oourt 
erred  in  refusing  to  quash  it,  unu  "ilso  in  refusing  to  sustain  the 
defendant's  motion  in  arrest  of  judgment.  IJoth  counts  at- 
tempt to  charge  that  the  offense  was  conmiitted  with  an  instru- 
ment. The  first;  count  says,  "did  .  .  .  administer  and  use 
on  one  Stella  Roberts  ...  a  certain  instrument."  The  sec- 
ond count  avers,  "did  .  .  .  use  on  and  administer  to  one 
Stella  Koberts,"  etc.  Ko  attempt  whatever  is  made,  in  either 
count,  to  state  how  or  in  what  numner  the  instrument  was  usimI 
"or  administered."  Whether  it  was  done  "by  forcing,  thrust- 
ing, and  inserting  said  instrument  into  the  private  parts,"  as 
was  alleged  in  the  indictments  in  Baker  v.  People,  lO.'i  111.  4.">2, 
and  Scott  v.  People,  141  111.  10.5,  30  X.  E.  Rop.  .329,  or  in 
some  other  manner,  is  wludly  left  to  inference.  If  the  evidence^ 
produced  on  the  trial  on  this  subject  proves  anything,  it  tends 
to  show  that  some  instrument  was  used  by  thrusting,  etc.,  in  ihc 
private  parts  of  Stella  Roberts;  but  no  one  will  seriously  con- 
tend that,  imder  the  allegations  of  the  indictment,  the  use  of 
an  instrument  with  the  intention  of  producing  an  abortion,  in 
any  other  manner,  would  not  have  been  equally  admissible. 

The  only  attempt  to  justify  this  departure  from  well-under- 
stood rules  of  criminal  pleading  is  the  contention  tliat,  bei'  g  a 
statutory  offense,  the  indictment  is  sufficient  as  clinv  -  in 

the  terms  and  language  of  the  statute,  or  so  pla  .lat  the 

nature  of  the  offense  might  l)e  easily  understood  i  the  jurv; 
relying  upon  section  6  of  division  11  of  the  Crimiiiiil  C  Ip. 
It  is  true  that  under  this  section  of  the  statute  it  is  generally 
sufficient  to  state  a  statutory  offense  in  the  terms  and  language 
of  the  statute;  but  there  are  well-understood  exceptions  to  the 
rule.  Where  the  language  of  the  statute  describes  the  act  or 
acts  constituting  the  offense,  no  more  is  necessary  than  to  state 
the  offense  in  that  language,  as  Avhere  the  offense  is  having  in 
possession  instruments  used  in  counterfeiting  coin.  In  an  in- 
dictment for  that  offense  it  was  held  sufficient  to  allege  that  the 
defendant  had  in  his  possession,  knowingly  and  without  lawful 
excuse,  certain  instruments  and  tools  used  in  counterfeiting  the 


ipui'inft'  or 
nuirdcr." 
'lit,  under 
tlio  oourt 
iisfnin  tho 
!o\ints  nt- 
nn  instni- 
r  and  uso 

The  so(^- 
cr  to  ono 
in  eitlior 
WHS  used 
[?,  thnist- 
•arts,"  ns 

111.  4r,-2, 
JO,  or  in 
evidcnco 

it  tonds 
c,  in  llic 
iisly  con- 
e  use  of 
rtion,  in 
hie. 
11-undor- 

hei-  g  ii 
'  in 

lilt  the 
10  jnrv : 
1  C  dp. 
^noraiiv 
mguago 
3  to  tho 

act  or 
to  state 
ving  in 

an  in- 
hat  tho 

lawful 
ing  the 


COCHRAN  r.  PEOPLE. 


611 


coin  current  in  this  State,  hcing  in  conformity  to  the  dcfinitinu 
of  the  crime  in  the  Criminal  Code.  There  the  act  c^mstitutina; 
the  offense  was  having  in  possession,  etc.,  no  matter  l»y  \\\\:\t 
nieiins  possessicm  Avas  ohtaiiuMl.  An<l  so  in  Lochr  r.  VropJc, 
i;52  Jll.  r»0-t,  24  X.  E.  Kep.  ()8,  the  indictment  heing  for  defac- 
ing and  altering  a  hook,  the  language  of  the  statute  heing,  "if 
any  judge,  ...  or  any  person  whatever,  shall  .  .  .  alter, 
corrupt,  withdraw,  falsify  or  avoid  any  record,  .  .  .  the 
]ierson  so  offending  shall  ho  imprisoned  in  the  penitentiary  not 
less  than  one  nor  more  than  seven  years,"  it  was  held  sullieient 
to  state  the  offense  in  the  language  of  the  statute,  without  speci- 
fying particularly  how  the  alteration  was  made.  Here,  again, 
the  offense  consisted  in  the  act  of  defacing  or  altering,  no  mat- 
ter hy  what  means  or  how  it  was  done;  and  so  as  to  the  cases 
there  cited  and  many  others  relied  upon  hy  counsel  for  the  Peo- 
jdo  as  sustaining  this  indictment.  In  another  class  of  cases, 
where  the  act  constituting  the  offense  is  committed  hy  means  of 
doing  certain  things,  such  as  ohtaining  money  hy  means  of  a 
confidence  game,  it  has  heen  held  sufficient  to  charge  that  the 
accused  did  unlawfully  and  feloniously  ohtain  "money  hy 
means  and  hy  use  of  the  confidence  game."  These  eases,  how- 
ever, are  hased  either  upon  the  express  provision  of  the  statute 
that  it  shall  he  deemed  and  held  a  sufficient  description  of  tho 
offense  to  charge  that  the  accused  did,  on,  etc.,  "unlawfully  and 
feloniously  ohtain,  or  attempt  to  ohtain  (as  the  case  may  he), 
from  A.  B.  his  money,  hy  means  and  xise  of  the  confidence 
game,"  or  upon  the  theory  that  the  term  "confidence  game"  has 
a  well-understood  meaning,  the  use  of  which  in  an  indictment 
sufficiently  apprises  the  accused  of  what  he  is  called  upon  to  de- 
fend. Morton  v.  People.  47  111.  408;  Maxwell  v.  People,  158 
111.  248,  41  X.  E.  Rep.  995. 

We  said,  however,  in  Johnson  v.  People,  113  111.  99  (on 
page  102)  :  "Xo  principle  of  criminal  pleading  is  hotter  settled 
than  that  an  indictment  for  a  mere  statutory  offense  must  he 
framed  upon  the  statute,  and  that  this  fact  must  distinctly  ap- 
pear upon  the  face  of  the  indictment  itself.  That  it  shall  so  ap- 
pear, the  pleader  must  either  charge  the  offense  in  the  language 
of  the  act  or  specifically  set  forth  the  facts  constituting  the  same. 
It  sometimes  happens,  however,  that  the  language  of  a  statute 


villi!'' 'i',!' 


I  ' ;  -, 


'>V'.  ;> 


I 


ill 


If  liii 


Ilii!   lili 


512 


AMERICAN  CRIMINAL  REPORTS. 


creating  a  new  offense  docs  not  describe  the  act  or  acts  constitut- 
ing such  offense.  In  that  case  the  pleader  is  bound  to  set  them 
forth  specifically.  This  elementary  rule  is  laid  down  in  all 
standard  works  on  criminal  law,  and  is  fully  recognized  by  this 
court.  1  Wharton  on  Crim.  Law,  sees.  164-372;  Kibs  v.  Peo- 
ple, 81  111.  599."  And  in  "Wharton  on  Criminal  Pleading  and 
Practice  (sec.  220),  it  is  said:  ''On  the  principles  of  common- 
law  pleading,  it  may  be  said  that  it  is  sufficient  to  frame  the 
indictment  in  the  words  of  the  statute  in  all  cases  where  the 
statute  so  far  individuates  the  offense  that  the  offender  has  no- 
tice, from  the  mere  adoption  of  the  statutory  term,  what  the 
offense  he  is  to  be  tried  for  really  is,  but  in  no  other  case  is  it 
suflicient  to  follow  the  words  of  the  statute.  It  is  no  more  al- 
lowable, under  a  statutory  charge,  to  put  the  defendant  on  trial 
without  a  specification  of  the  offense,  than  it  would  be  under  a 
common-law  charge." 

In  West  V.  People,  137  111.  189,  27  N.  E.  Rep.  34,  and  34 
^N".  E.  Rep.  254,  will  be  found  a  citation  of  authorities  to  the 
effect  that  the  constitutional  provision  (section  9  of  article  2), 
providing  that  in  all  criminal  prosecutions  the  accused  shall 
have  the  right  "to  demand  the  nature  and  cause  of  the  accusa- 
tion" against  him,  is  for  the  purpose  of  sec  ring  to  him  such 
specific  designation  of  the  offense  laid  to  his  charge  as  will  en- 
able him  to  prepare  fully  for  his  defense,  and  plead  the  judg- 
»■  lent  in  bar  of  a  subsequent  prosecution  for  the  same  offense. 

The  manner  in  which  the  offense  defined  in  section  3  of  di- 
vision 1  of  the  Criminal  Code  may  be  committed  is  "by  means 
of  any  instrument,  medicine,  drug  or  other  means."  The  act 
of  using  an  instrument  is  in  no  way  described.  The  language, 
"by  means"  of  any  instrument,  is  broad  enough  to  include  any 
and  every  means  by  which  an  instrument  could  be  used  for  the 
purpose  of  causing  an  abortion.  It  is  therefore  clear  that,  in 
order  to  make  a  good  indictment  against  one  for  the  commis- 
sion of  a  crime  bv  means  of  an  instrument,  as  is  said  in  John- 
son  V.  People,  supra,  the  "pleader  is  bound  to  set  forth  the  acts 
pecifically ;"  that  is,  state  with  reasonable  certainty  the  man- 
ner in  which  the  act  was  committed.  Furthermore,  it  is  not 
true  that  this  indictment  charges  the  offense  in  the  terms  and 
language  of  the  statute,  as  will  be  readily  seen  by  comparing 


COCHRAN  V.  PEOPLE. 


513 


the  statements  therein  made  with  section  3,  supm.  Just  Avhat 
is  meant  by  "administering"  an  instrument  to  a  person  it  is 
difficult  to  understand ;  and,  as  we  have  said,  the  general  state- 
ment that  an  instrument  was  used  upon  a  person  gives  no  indi- 
cation of  the  manner  in  which  it  was  used.  A  jury  might  con- 
jecture or  imagine  from  the  allegations  the  nature  of  the  offcnj^o 
with  Avhich  the  defendant  is  charged,  hut  it  cannot  he  said  that 
it  is  so  plainly  alleged  that  it  could  be  easily  understood  either 
by  him  or  the  jury. 

In  our  opinion,  to  sustain  this  indictment  would  be  to  sulv 
stantially  lay  down  the  rule  that  any  indictment  is  sufficient 
which  amounts  to  an  accusation  of  the  commission  of  a  crime. 
It  is  not  intended  to  announce  any  rule  which  will  render 
nugatory  the  provision  of  section  6  of  division  11  of  the  Crim- 
inal Code,  wisely  intended  to  simplify  criminal  pleading  and 
dispense  with  many  technical  and  useless  averments  heretofore 
required  in  indictments;  but  we  are  not  prepared  to  hold  thnt 
a  defendant  indicted,  under  a  statute  of  this  kind,  for  a  most 
serious  offense,  is  not  fairly  entitled  to  notice,  by  statements  in 
the  indictment,  as  to  the  act  or  acts  with  which  he  is  charged  in 
tlie  commission  of  the  offense.  We  have  carefully  sought  for 
some  precedent  or  a^ithority  which  could  fairly  be  said  to  sus- 
tain this  indictment,  and  have  been  wholly  unable  to  find  one. 
We  are  not  willing  to  establish  the  precedent  by  this  decision, 
and  accordingly  hold  that  the  indictment,  and  each  count  there- 
of, is  fatally  defective.  The  judgment  of  the  circuit  court  will 
be  •  oversed,  and  the  cause  will  be  remanded.  Reversed  and  re- 
manded. 

Mr.  Justice  Maoeudee  dissenting. 

Notes. — Indictments  fou  Statutory  Offenses  (by  J.  F.  G.). — Illinois 
Cases:  There  are  two  Irreconcilable  lines  of  decisions  in  Illinois  upon 
this  subject;  the  conflict  being  as  to  the  construction  of  section  408  of 
the  Criminal  Code,  which  reads  as  follows:  "Every  Indictment  or  ac- 
cusation of  the  grand  jury  shall  be  deemed  sufficiently  technical  and 
correct  which  states  tha  offense  in  the  terms  and  language  of  the 
statute  creating  the  offense,  or  so  plainly  that  the  nature  of  the  of- 
fense may  be  easily  understood  l)y  the  jury."  In  several  of  the  cases 
the  court  has  followed  the  letter  of  the  statute;  while  in  better  con- 
sidered cases  the  rule  announced  in  Cochran  v.  People  has  been  fol- 
lowed. 

Vou  XI  — 83 


(t '» 


,P^' 


\   \ 


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AMERICAN   CRIMINAL  REPORTS. 


In  Cochran  v.  People  the  court  quotes  with  approval  the  following 
from  Johnson  v.  People:  "It  sometimes  happens,  however,  that  the 
language  of  a  statute  creating  a  new  offense  does  not  describe  the  act 
or  acts  const'tuting  such  offense.  In  that  case  the  pleader  is  bound  to 
set  them  forth  specifically.  This  elementary  rule  Is  laid  down  in  all 
standard  works  on  criminal  law,  and  is  fully  recognized  by  this  court." 
While  following  the  correct  doctrine,  the  court  makes  an  ineffectual 
effort  to  reconcile  it  with  the  decisions  in  Morton  v.  People,  47  111.  468, 
and  Maxwell  v.  People,  158  111.  248.  41  N.  E.  Rep.  995,  by  suggesting 
that  the  indictments  in  those  cases  were  sustained  either  on  the  prop- 
osition that  there  was  an  express  statute  governing  the  form  of  the 
indictment,  "or  upon  the  theory  that  the  term  'confidence  game'  has  a 
well-understood  meaning,  the  use  of  which  in  an  indictment  sufll- 
ciently  apprises  the  accused  of  what  he  is  called  upon  to  defend." 
This  theory  is  refuted  by  the  opinion  in  the  Maxwell  Case,  where  tho 
court,  referring  to  the  phrase  "commonly  called  the  confidence  game," 
says:  "These  words  imply  that  the  statute  was  intended  to  embrace 
any  other  means,  instrument  or  device,  besides  the  use  of  false  or 
bogus  checks,  which  comes  within  the  meaning  of  what  is  commonly 
called  the  confidence  game."  In  the  Morton  Case  the  court  sau*- 
"Now,  as  these  devices  are  as  various  as  the  mind  of  man  is  suggestive, 
it  would  be  impossible  for  the  legislature  to  define  them,  and  equally 
so  to  specify  them  in  an  indictment;  therefore  the  legislature  has  de- 
clared that  an  indictment  for  this  offense  shall  be  sufficient  4f  the  alle- 
gation is  contained  in  it  that  the  accused  did,  at  a  certain  time  and 
place,  unlawfully  and  feloniously  obtain  or  attempt  to  obtain  the 
money  or  property  of  another  by  means  and  by  use  of  the  confidence 
game,  leaving  to  be  made  out  by  the  proof  the  nature  and  kind  of 
the  devices  to  which  resort  was  had."  Following  this  language,  the 
court  proceeds  on  the  theory  that  pleading  a  statutory  offense  in  the 
language  of  the  statute  is  sufficient,  citing  Miller  v.  People,  2  Scam. 
233,  and  Kennedy  v.  People,  17  111.  158.  The  Morton  Case  is  certainly 
overruled  on  the  last  proposition,  and  should  be  on  the  proposition 
that  a  statute  can  nullify  an  express  provision  of  the  constitution, 
giving  to  the  accused  the  right  "to  demand  the  nature  and  cause  of  the 
accusation  against  him."  (State  v.  Couch,  and  notes,  in  present 
volume. ) 

In  Prichard  v.  People,  149  III.  50.  36  N.  E.  Rep.  103,  the  court  held 
that  the  above-cited  section  did  not  abrogate  the  commo'-'aw  rule  of 
pleading,  as  applied  to  indictments,  and  held  that:  "It  is  an  ele- 
mentary rule  of  pleading,  both  civil  and  criminal,  that  allegations  of 
fact  in  pleadings  should  be  direct  and  positive,  and  not  merely  argu- 
mentative and  inferential;"  and  that  "whether  the  description  of  the 
offense  is  so  plain  that  its  nature  can  easily  be  understood  by  the  Jury 
must  depend  upon  whether  it  is  described  with  at  least  a  reasonable 
degree  of  certainty,  using  the  term  'certainty'  in  its  common-law 
sense." 

In  McNair  v.  People,  89  111.  441,  the  indictment  under  consideration 
contained  three  counts.  In  the  first  count  it  was  charged  that  the 
defendant  "unlawfully  caused  to  be  printed  a  certain  obscene  and  In- 


COCHRAN  V.  PEOPLE. 


615 


decent  pamphlet,  with  Intent  to  give  the  same  away."  In  the  second 
count  It  was  charged  that  he  "unlawfully  did  have  in  his  possession, 
with  intent  to  give  away,  a  certain  otracene  and  indecent  pamphlet, 
purporting  to  be  evidence  tal<en  before  a  committee  appointed  by  the  Fox 
River  Valley  Medical  Association,  in  the  matter  of  charges  against  O.  L. 
Pelton,  preferred  by  Dr.  McNair."  In  the  third  count  it  was  charged 
that  he  "unlawfully  did  give  away  a  certain  obscene  and  indecent 
pamphlet,  then  and  there  thereby  circulating  the  same."  The  court 
held  that  while  the  section  of  the  statutes  relating  to  indictments  is 
broad  and  comprehensive,  "it  was  necessary  to  set  out  the  supposed 
obscene  matter  in  the  indictment,  unless  the  obscene  publication  is  in 
the  hands  of  the  defendant,  or  out  of  the  power  of  the  prosecution,  or 
the  matter  is  too  gross  and  obscene  to  be  spread  on  the  records  of  the 
court,  either  of  which  facts,  if  existing,  should  be  averred  in  the  in- 
dictment, as  an  excuse  for  failing  to  set  out  the  obscene  matter;  that 
whether  obscene  or  not,  is  a  question  of  law,  and  not  of  fact;  that  the 
question  is  for  the  court  to  determine,  and  not  for  the  jury."  The 
court  further  said:  "The  averments  would  apply  equally  well  to  any 
one  of  many  pamphlets.  They  give  no  notice  of  any  particular  charge. 
These  can,  under  no  construction  of  this  section,  be  held  sufficient." 
The  judgment  was  reversed  upon  that  question  alone.  The  McXair 
Case  is  supported  by  the  noted  case  of  Bradlaugh  v.  Queen,  3  Am. 
Crim.  Rep.  470,  3  Q.  B.  Div.  607,  where  the  subject  is  extensively  re- 
viewed. 

In  Rank  v.  People,  80  111.  App.  40,  the  indictment  was  based  upon  a 
statute  which  provided  as  follows:  "Whoever,  either  verbally  or  by 
written  or  printed  communication,  maliciously  threatens  to  accuse  an- 
other of  a  crime  or  misdemeanor,  or  to  expose  or  publish  any  of  his 
infirmities  or  failings,  with  extent  to  extort  money,"  etc.  The  indict- 
ment charged  that  the  defendant,  'unlawfully  and  wilfully  did  then  and 
there,  to  one  John  H.  Anderson,  verbally  and  maliciously  threaten  to 
accuse  the  said  John  H.  Anderson  of  a  certain  misdemeanor,  to  wit, 
selling  intoxicating  liquors  without  then  and  there  having  a  legal 
license  to  keep  a  dram-shop,  with  intent  to  extort  money  from  the  said 
John  H.  Anderson,"  etc.  In  reversing  the  conviction  the  court  held 
that  the  Indictment  was  insufficient  in  that  the  language,  "threaten 
to  accuse  the  said  John  A.  Anderson  of  a  misdemeanor,"  is  merely  a 
conclusion;  and  that  the  suposed  misdemeanor  was  not  sufficiently  de- 
scribed, in  that  it  is  no  offense  under  the  statute  to  sell  intoxicating 
liquors  without  a  license  in  greater  quantities  than  one  gallon,  unless 
to  be  drank  on  or  about  the  premises,  etc.;  hence  the  indictment  did 
not  charge  that  the  accused  had  threatened  to  accuse  Anderson  with 
any  known  misdemeanor.  The  court  cites  as  sustaining  its  conclusion 
McNair  v.  People,  89  111.  411;  Johnson  v.  People,  113  111.  99;  Hunter  v. 
People,  149  111.  50;  Hunter  v.  People,  50  111.  App.  367;  Williams  V. 
People,  101  111.  382;   Thompson  v.  People,  96  111.  158. 

In  Toicne  v.  Peopl",  89  111.  App.  258,  three  counts  of  the  indictment 
charging  the  accused  with  conspiracy,  in  the  language  of  the  statute, 
were  held  insufficient.  Among  the  authorities  cited  to  sustain  that 
contention  was  Cochran  v.  People,  supra. 


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AMERICAN  CRIMINAL  REPORTS. 


The  doctrine  as  announced  hy  the  Supreme  Court  of  the  United 
States.— In  United  States  v.  Carll,  105  U.  S.  611,  4  Am.  Crlm.  Rep.  246. 
the  court  said:  "In  an  indictment  upon  a  statute,  it  is  not  sufficient  to 
set  forth  the  offense  in  the  words  of  the  statute,  unless  those  words 
of  themselves,  fully,  directly  and  expressly,  without  any  uncertainty 
or  ambiguity,  set  forth  all  the  elements  necessary  to  constitute  the  of- 
fense intended  to  be  punished;  and  the  fact  that  the  statute  in  ques- 
tion, read  in  the  light  of  the  common  law,  and  of  other  statutes  on 
the  like  matter,  enables  the  court  to  infer  the  intent  of  the  legislature, 
does  not  dispense  with  the  necessity  of  alleging  in  the  indictment  all 
the  facts  necessary  to  bring  the  case  within  that  intent."  See  also 
Pettibone  v.  United  States,  148  U.  S.  197;  United  States  v.  Hess,  124 
U.  S.  483;  United  States  v.  Britton,  108  U.  S.  199;  United  States  v. 
Hirsch,  100  U.  S.  33;  United  States  v.  Simmons,  9G  U.  S.  3G0;  United 
States  V.  Crxiikshank,  92  U.  S.  542. 

Decisions  in  various  States. — In  State  v.  Gabriel,  88  Mo.  G31,  on 
page  642,  the  court  says:  "The  rule  is  that,  where  the  indictment  is 
based  upon  a  statute  creating  the  offense,  an  offense  unknown  to  the 
common  law,  the  indictment  must  set  forth  all  the  constituent  facts 
and  circumstances  necessary  to  bring  the  accused  perfectly  within  the 
statutory  provisions;"  citing  People  v.  Allen,  5  Denio,  76;  1  Arch. 
Crim.  Pr.  &  PI.  282,  note  1;  Hall  v.  State,  Z  Cold.  125;  Bishop  on  Stat. 
Crimes,  sees.  418,  421,  422. 

In  Massachusetts  an  act  was  entitled:  "An  act  more  effectually  to 
protect  the  sepulchres  of  the  dead,  and  to  legalize  the  study  of  anat- 
omy in  certain  cases."  The  act  contained  the  following:  "That  if 
any  person,  not  being  authorized  by  the  board  of  health,  etc.,  shall 
knowingly  or  wilfully  dig  up,  remove,  or  convey  away,  or  aid  and  as- 
sist in  digging  up,  removing,  or  conveying  away,  any  human  body,  or 
the  remains  thereof,"  such  person  shall  be  adjudged  guilty  of  felony. 
In  Commonwealth  v.  Slack,  19  Pick.  304,  the  indictment  charged  that 
the  defendants  "did  unlawfully,  feloniously,  knowingly  and  wilfully 
remove  and  convey  away  from  the  said  town  of  Westhampton  a  cer- 
tain human  body,  to  wit,  the  body  of  Ibrook  Miller,  who  had  deceased 
at  said  Westhampton  previous  to  the  said  removing  and  conveying 
away  aforesaid,  they,  the  said  William  Slack  and  Joseph  Kingsley, 
not  being  authorized  by  the  board  of  health  or  overseers  oi  the  poor 
or  the  selectmen  of  said  town  of  Westhampton."  In  holding  this  in- 
dictment bad  the  court  said:  "The  literal  construction  of  this  clause 
of  the  statute  would  seem  to  prohibit  the  removal  of  any  dead  body 
for  any  purpose  whatever,  but  such  a  construction  would  render  a 
person  criminal  for  removing  a  dead  body  for  the  purpose  of  inter- 
ment, without  obtaining  a  license  therefor  from  the  overseers  of  the 
poor  or  selectmen,  which  it  Is  impossible  to  suppose  could  have  been 
the  intention  of  the  legislature."  In  accordance  with  this  conclusion 
the  court  said:  "The  indictment,  therefore,  should  have  set  out  pre- 
cisely all  the  facts  and  circumstances  which  render  the  defendant 
guilty  of  the  offense  charged." 

In  Brown  v.  State,  76  Ind.  85,  the  indictment  under  consideration 
was  for  malicious  trespass,  and  charged  that  the  defendant  did  "then 


COCHRAN  r.  PEOPLK 


517 


and  there  unlawfully,  maliciously  and  mischievously  injure,  end  cause 
to  be  injured,  a  certain  window,  window  blind  and  sowing  machine, 
all  the  property  of  Nathaniel  W.  Phipps,  by  then  and  *here  wrongfully, 
maliciouaiy  and  mischievously  throwing  a  stone,  and  stones,  at  and 
against  and  through  the  said  window  and  window  blind,  and  at  and 
against  said  sewing  machine,  to  the  damage  of  the  said  Nathaniel 
Phipps  in  the  sum  of  nine  dollars  and  forty  cents."  The  indictment 
was  held  insufficient  in  that  nothing  at  all  was  alleged  as  to  the  in- 
jury, "whether  defaced,  brolien  or  destroyed."  The  court  ba^ed  its  de- 
ci9Ton  upon  the  fact  that  "che  accused  ought  to  be  confronted  with  a 
statement  of  the  kind  and  character  of  the  injury,  for  the  measure  of 
punishment  depends  upon  the  extent  and  character  of  the  injury  done 
to  the  property."  The  indictment  should  have  shown,  for  example, 
"that  the  window  was  broken,  or  that  the  sewing  machine  was  broken 
or  defaced." 

In  iState  v.  Costello,  62  Conn.  128,  25  Atl.  Rep.  477,  the  complaint 
under  consideration  charged  that  the  accused  "did  wilfully  injure  a 
public  building  and  house  of  worship  situated,"  etc.  The  court  said: 
"It  has  been  stated  in  many  cases  that  in  an  information  for  a  stat- 
utory offense  it  is  sufficient  to  allege  it  in  the  words  of  the  statute. 
But  such  statement  is  never  intended  to  be  a  relaxation  of  the  general 
rule  as  above  given,  because  in  all  cases  the  offense  must  be  set  forth 
with  clearness  and  all  necessary  certainty  to  apprise  the  accused  of 
the  crime  with  which  he  stands  charged.  Ordinal  ily  it  is  sufficient 
to  charge  a  statutory  offense  in  the  words  of  the  statute.  But  when 
the  words  of  a  statute  by  their  generality  may  embrace  cases  falling 
within  its  literal  terms  which  are  not  within  its  meaning  and  spirit, 
or  where  from  the  nature  of  the  offense  the  words  used  of  the  statute 
do  not  clearly  and  definitely  apprise  the  accused  of  the  offense  charged 
against  him,  then  greater  particularity  must  be  used."  In  applying 
this  doctrine  the  court  suggested  tlu.t  the  injury  alleged  might  be 
done  in  almost  an  indefinite  number  of  ways,  such  ''s  cutting  the  back 
of  a  pew  with  a  knife,  or  picking  the  lock  of  the  door,  or  blowing  up 
the  building  with  dynamite,  or  any  method  causing  injury  between 
these  extremes.    The  judgment  of  the  court  below  was  reversed. 

As  to  indictments  for  malicious  mischief,  see  also  Lightfoot  v.  State, 
reported  in  the  present  volume. 

For  an  extended  review  of  this  subject,  Sullivan  v.  State,  67  Miss. 
346,  7  So.  Rep.  275,  12  Crim.  Law  Mag.  498,  is  a  valuable  authority. 
In  that  case  John  L.  Sullivan  was  charged  with  engaging  in  a  prize 
fight  with  Jake  Kilrain,  the  indictment  charging  tliat  it  was  done  by 
a  previous  arrangement,  and  for  a  large  sum  of  money,  and  that  he 
did  "unlawfully  engage  in  a  prize  fight  with  the  said  Jake  Kilrain, 
to  wit,  did  then  and  there  enter  a  ring  commonly  called  a  prize  ring, 
beat,  strike  and  bruise  the  said  Jake  Kilrain,"  etc.  The  court  said; 
"The  statute  neither  defines  the  offense  of  prize  fighting  nor  declares 
what  act  shall  be  a  violation  of  the  provision.  The  specific  offense 
was  unknown  to  the  common  law,  the  participants  in  such  case  he.ng 
only  punishable  for  affray,  riot,  or  assault  and  battery,  according  to 
the  circumstances."     The  court  held  that  as  the  term  "prize  fight" 


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AMERICAN  CRIMINAL  REPORTS. 


refers  to  a  public  exhibition,  and  that  as  "the  evil  sought  to  be  pro- 
tected against  by  the  statute  is  the  debasing  and  brutalizing  practice 
of  fighting  in  public  places,  or  places  to  which  the  public  or  some  part 
of  it  is  admitted  as  spectators,"  that  "it  is  not  sufficient  to  indict  by 
the  use  of  the  statutory  words  only,  but  the  facts  which,  if  proved, 
show  him  to  be  guilty  of  a  statutory  offense  must  be  charged." 

Upon  this  subject  see  also  Packard's  Case,  4  Oreg.  189;  Perham's 
Case,  4  Oreg.  188;  State  v.  Hill,  79  N.  C.  657;  State  v.  Philbrtck,  31  Me. 
435;  Commonwealth  v.  Cook,  13  B.  Mon.  (Ky.)  149;  Jewell  v.  Terri- 
tory, 4  Okl.  53;  Commonwealth  v.  Hunt,  4  Met.  Ill;  State  v.  Parker, 
43  N.  H.  83;  State  v.  Reach,  40  Vt.  113,  and  the  subject  "Indictments" 
in  the  index  of  10  American  Criminal  Reports,  where  reference  is 
made  to  numerous  authorities  in  that  and  the  nine  previous  volumes. 

See  also  Appleby  v.  State,  63  N.  J.  526  (1899),  42  Atl.  Rep.  847,  a 
strong  opinion,  a  note  of  which  is  to  be  found  in  this  volume,  ante, 
among  notes  under  the  head  of  "False  Pretenses." 


Merritt  v.  State. 


1  "■]  ! 


89  Tex.  Crim.  Rep.  70—45  S.  W.  Rep.  21. 

Decided  March  16,  1898. 

Insanity:   Delusions:    Homicide:    Evidence — Wife  as  a  witness — Ex- 
traneous matters — Defective  instructions. 

1.  Certain  evidence,  not  important,  held  to  be  part  of  the  res  gestw. 

2.  Where,  on  cross-examination  by  the  defense,  it  was  sought  to  show 

that  a  witness  was  one  who  sought  with  others  to  get  up  a  mob 
to  mob  defendant,  it  was  not  error  to  allow  him  to  state  on  re- 
examination that  he  was  opposed  to  mob  law. 

3.  Evidence  of  a  justice  of  a  peace,  that  seven  or  eight  years  before 

the  homicide  the  defendant's  wife  made  complaint  before  him 
that  defendant  had  assaulted  her,  was  incompetent  and  prejudi- 
cial. 

4.  Where  defendant's  wife  was  introduced  as  a  witness  for  certain 

purposes,  it  was  error  to  allow  the  prosecution  to  cross-examine 
her  as  to  matters  not  germane  to  her  examination  in  chief.  It 
was  not  allowable  thus  to  draw  out  matters  prejudicial  to  the 
defendant,  or  to  lay  a  foundation  to  impeach  her  evidence. 
6.  It  was  error  to  allow  a  deputy  sheriff  to  give  his  opinion  that  de- 
fendant was  sane,  based  upon  hearing  him  testify  previously  in 
another  case. 

6.  It  was  allowable  for  a  neighbor  of  defendant,  under  the  "peculiar 

circumstances"  of  the  case,  to  testify  on  cross-examination  that 
he  had  never  heard  of  defendant's  insanity  until  after  the  hom- 
icide. 

7.  Where  it  was  shown  by  a  number  of  witnesses  that  for  several 

years  defendant  had  told  many  persons,  in  an  intensely  excited 


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MERRITT  V.  STATE. 


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mood,  that  a  mob  was  after  him  to  kill  him,  it  was  error  not  to 
permit  such  witnesses  to  testify  that  defendant  said  that  Brown, 
the  deceased,  was  at  the  head  of  the  mob.  This  action  of  the 
trial  court  kept  from  the  Jury  the  most  vital  part  of  the  evidence, 
concerning  his  fear  and  delusions  as  to  a  mob,  and  tended  to 
greatly  depreciate  in  importance  the  evidence  admitted. 

8.  A   witness   who   had   been   defendant's   family  physician   for   ten 

years,  but  who  had  only  seen  him  once  or  twice  in  six  years,  was 
competent  as  an  expert,  although  the  value  of  his  opinion  might 
be  tested  by  a  fuller  examination. 

9.  It  is  settled  that  a  delusion  is  a  form  of  insanity.    One  may  be 

afflicted  with  "monomania" — insane  on  one  topic,  but  sane  on  all 
other  topics.  It  is  not  necessary  that  this  delusion  be  confined 
to  a  delusive  belief  of  a  fact  which,  if  true,  would  afford  a  justi- 
fication; but  if  the  mind  of  the  person  was  so  impaired  by  the 
delusion  as  not  to  be  able  to  discern  the  right  or  wrong  of  the 
particular  act,  and  he  was  induced  to  commit  the  act  by  the  de- 
lusion, such  act  is  not  criminal. 
10.  The  evidence  tended  to  show  that  defendant  was  overwhelmed  by 
an  insane  delusion  that  Brown,  the  deceased,  was  the  leader  of 
a  mob  that  was  seeking  his  life,  and  as  a  consequence  thereof 
he  killed  Brown,  and  the  instructions  should  have  fully  covered 
the  evidence  and  correctly  applied  the  law,  which  was  not  done. 
The  jury  should  have  been  instructed  that,  if  they  believed  that 
defendant  killed  Brown  while  possessed  of  such  insane  delusion, 
believing  at  the  time  that  by  taking  Brown's  life  he  was  preserv- 
ing his  own,  he  should  be  acquitted. 


Ii« 


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J.  W.  Merritt,  convicted  of  murder  in  the  second  degree,  in 
tlie  Parker  District  Court,  Hon.  J.  W.  Patterson,  Judge,  ap- 
peals.   Reversed. 

F.  L.  Hutchison  and  Henry  W.  Kuteman,  for  the  appellant. 
Mann  Trice,  Asst.  Atty.  Gen.,  77.  B.  Hood,  Co.  Atty.,  Albert 
Stevenson  and  Nat.  P.  Jaclson,  for  the  State. 


IIkxNderson,  J.  Appcll.int  was  convicted  of  murder  in  the 
second  degree,  and  his  punishment  assessed  at  confinement  in 
the  penitentiary  for  a  term  of  five  years ;  hence  this  appeal. 

In  appellant's  first  bill  of  exceptions  he  complains  that  the 
court  acted  improperly  in  admitting  the  testimony  of  T.  F.  Har- 
rison, to  the  effect  that,  just  before  the  killing,  Joe  Brown  was 
over  with  him  on  the  platform  at  Millsap,  and  went  from  there 
over  to  the  blacksmith  shop,  and,  in  connection  with  his  going, 
stated  that  he  said  he  was  going  from  there  cither  to  get  some 


;'5! 


!:;!!!  ii 


1  1 


620 


AMERICAN  CRIMINAL  REPORTS. 


^vatcr  or  draw  some  water,  witness  was  not  certain  wliicli.  The 
objection  urged  to  this  testimony  was  that  the  statement  was 
made  in  tlie  absence  of  the  defendant.  In  our  opinion  what  he 
said  at  the  time  of  going  over  to  the  shop  was  a  part  of  the  res 
gesiw  of  that  act,  and  was  admissible.  But,  if  it  be  conoodod 
that  it  was  not,  we  fail  to  see  how  its  admission  conld  injure 
the  appellant.  There  is  no  i)i"etense  anywhere  in  the  record 
that  deceased  was  pursuing  Merritt  or  seeking  an  encounter 
with  him.  Xor  is  there  any  pretense  that  he  went  over  to  saitl 
shop  for  any  other  than  an  innocent  purpose. 

We  also  believe  that  it  was  admissible  to  show  on  the  re- 
examination of  the  witness  Harrison  by  the  State  that  he  was 
opposed  to  mob  law,  and  had  always  used  his  influence  to  pre- 
vent mobs.  This  was  in  rebuttal  of  the  attempt  to  show  by  this 
witness,  on  his  cross-examination  by  the  defendant,  that  he  was 
one  of  a  party  who  had  undertaken  to  get  up  a  mob  to  mob  the 
defendant. 

We  fail  to  see  how  it  was  admissible  to  prove  by  the  witness 
McCall  that  defendant's  wife,  seven  or  eight  years  before  tlie 
homicide,  had  made  conqdaint  before  him  as  a  justice  of  the 
peace,  in  Avhich  she  charged  her  husband  with  making  an  as- 
sault on  her.  There  was  nothing  in  the  case  that  rendered  this 
testimony  admissible,  and  it  was  of  a  character  to  prejudice  ap- 
pellant's case  before  the  jury. 

Under  the  peculiar  circumstances  of  this  case,  in  our  opinion 
it  was  admissible  to  prove,  en  cross-examination  by  tlie  State  of 
the  witness  J.  R.  Hollified,  ''that  he  had  never  heard  of  defend- 
ant being  insane  until  after  the  homicide."  There  was  a  great 
deal  of  testimonv  introduced  bv  the  defendant  tending  to  show 
that  appellant  was  insane,  and  that  this  insanity  was  of  Imig 
standing.  The  witness  Hollified  was  a  near  neighbor  of  the 
appellant,  and  it  was  competent  to  show  by  him  that  he  had 
never  heard  of  the  defen<lant  being  insane  until  after  the  homi- 
cide, as  tending  to  show  on  the  part  of  the  State  that  the  defense 
relied  on  was  of  recent  fabrication  and  origin. 

By  bills  of  exception  numbers  8,  9,  11,  12,  13,  and  part  of  15, 
appellant  presents  the  question  as  to  the  competency  of  evidence 
to  show  that  Joe  Brown  was  regarded  by  the  defendant  as  being 
at  the  head  of  a  mob  to  kill  him.    This  testimony  was  offered  by 


MEHRITT  V.  8TATK 


521 


appellant,  in  connection  with  other  testimony  from  a  nuinl)or 
of  witnesses,  tending  to  show  his  insanity;  that  such  insnnity 
was  in  the  shape  of  a  delnsion  that  a  mob  was  after  him  to  kill 
him,  and  that  Joe  Brown  was  at  the  head  of  the  mol).  It  ox- 
tonded  over  a  number  of  years,  and  these  bills  of  pxco])tinn 
show  that  proof  was  made  on  a  number  of  occasions  that  ajipol- 
lant  talked  to  them  (witnesses)  about  a  mob  being  after  bim, 
and  on  such  occasions  he  became  intensely  excited  and  beside 
himself,  and  that  they  pronounced  him  insane  on  the  subject  of 
believing  that  a  mob  was  seeking  his  life.  In  connection  with 
their  testimony  as  to  his  conversation  about  the  mob  being  after 
him,  and  his  conduct  and  condition  on  such  occasions,  it  was 
offered  to  be  proved  by  them  that  he  stated  that  Joe  lirown  was 
at  the  head  of  the  mob,  and  that  he  was  at  the  bottom  of  the  at- 
tempt to  mob  him.  As  a  specimen  of  this  character  of  testi- 
mony, we  will  quote  from  bill  of  exceptions  Xo.  13  as  follows: 
"While  the  witness  Jasper  X.  ITaney  was  on  the  stand,  after  he 
ha<l  testified  that  he  had  known  defendant  for  several  vcars, 
and  that  he  had  received  a  letter  ab(jut  two  months  before  the 
homicide  from  defendant  requesting  him  to  send  up  a  T'nited 
States  marshal,  that  he  was  about  to  be  mnl)l)ed,  and  that  four 
or  five  days  after  said  letter  w;is  received  defendant  rushed  into 
his  (Avitness')  law  office,  greatly  excited,  and  stated  a  mob  was 
after  him,  and  that  they  were  going  to  kill  him  (defendant), 
and  asked  for  protection;  and  after  said  witness  had  testified 
that  in  his  o]iinion  defendant  was  not  sane  on  the  question  of  a 
mob,  and  that  he  would  kill  any  one  he  fancied  connected  there- 
with, and  would  not  know  it  was  wrong, — counsel  for  defend- 
ant offered  to  prove  by  said  witness  that  when  defendant  rushed 
into  his  office  as  above  stnted,  and  in  the  same  conversation  above 
stated,  the  defendant  claimed  that  Joe  Brown,  deceased,  was 
the  leader  of  the  mob,  and  had  organized  it  for  the  purpose  of 
killing  him."  This  testimony,  in  which  the  witness  named  Joe 
Brown  as  the  leader  of  the  mob,  was  excluded ;  and  it  will  be 
seen,  going  through  the  statement  of  facts,  that  the  court  per- 
mitted the  witnesses  to  testify  as  to  all  the  facts  of  these  conver- 
sations, leaving  out  the  name  of  Joe  Brown  as  the  leader  of  the 
mob,  merely  referring  to  the  leader  of  the  mob  as  "a  certain 
person."    It  has  long  been  recognized  that  a  delusion  is  a  form 


:f 


1'^^;,' 


mUv^ik^ 


.i  i. 


522 


AMERICAN  CRIMINAL  REPORTS. 


■Ml!: 


m 


1 


of  insanity.    It  is  sometimes  called  "monomania;"  that  is,  the 
subject  may  bo  sane  on  every  other  topic,  but  insane  on  some 
particular  topic.     Of  course,  it  denotes  an  impairuiont  or  dis- 
ease of  the  mental  faculties  which  may  more  or  less  affect  the 
mind  generally.     We  quote  from  Mr.  Wharton  on  this  subject 
(1  ^\^lart.  Cr.  Law,  sec.  37):  "The  answer  of  the  English 
judges  on  the  special  topic  of  delusion  is  as  follows:  'The  an- 
swer must,  of  course,  depend  on  the  nature  of  the  delusion ;  but, 
making  the  same  a8sumi)tion  as  we  did  before,  namely,  that  ho 
labors  under  such  partial  delusion  only,  and  is  not  in  other  re- 
spects insane,  we  think  he  must  be  considered  in  the  same  situa- 
tion as  to  responsibility  as  if  the  facts  with  respret  to  which 
the  delusion  exists  were  real.     For  example,  if,  under  the  in- 
fluence of  his  delusion,  he  supposes  another  man  to  be  in  the 
act  of  attempting  to  take  away  his  life,  and  ho  kills  that  man, 
as  he  supposes,  in  self-defense,  he  would  be  exempt  from  pun- 
ishment.    If  his  delusion  was  that  the  deceased  had  inflicted  a 
serious  injury  to  his  character  and  fortune,  and  he  killed  him 
in  revenge  for  such  supposed  injury,  ho  would  be  liable  to  pun- 
ishment.'   To  the  same  effect  speaks  Chief  Justice  Shaw:  *^[on- 
omania  may  operate  as  an  excuse  for  a  criminal  act'  when  'the 
delusion  is  such  that  the  person  imder  its  influence  has  a  real 
and  firm  belief  of  some  fact  not  true  in  itself,  but  which,  if  it 
were  true,  would  excuse  his  act;  as  where  the  belief  is  that  tho 
party  killed  had  an  immediate  design  upon  his  life,  and  under 
that  belief  the  insane  man  kills  in  supposed  self-defense.  A  com- 
mon instance  is  where  he  fully  believes  that  the  act  he  is  doing 
is  done  by  the  immediate  command  of  God,  and  he  acts  under 
the  delusive,  but  sincere,  belief  that  what  he  is  doing  is  by  tho 
command  of  a  superior  power,  which  supersedes  all  human  laws 
and  the  laws  of  nature.'  "    We  gather  from  the  authorities  that 
a  delusion  need  not  be  confined,  as  was  fonnorly  held,  to  tho  de- 
lusive belief  of  a  fact  which,  if  true,  would  afford  a  justifica- 
tion.    But  if  the  delusion  was  of  such  a  character  as  to  impair 
tho  mind  of  the  person  possessed  thereof,  to  such  an  extent  that 
the  person  was  not  able  to  discern  the  right  or  wrong  of  the  par- 
ticular act  ho  was  doing,  and  was  induced  to  commit  the  par- 
ticular act  by  the  delusion,  ho  would  not  bo  a  criminal.     Mr. 
Bishop,  after  stating  the  rule  about  as  Mr.  Wharton  does,  supra. 


MERRITT  V.  STATE. 


623 


11SC3  this  langiinge:  "This  branch  of  the  doctrine  should  bo  cau- 
tiously received,  for  delusion  of  any  kind  is  strongly  indicative 
of  a  generally  di'^eased  mind,  and,  doubtless  sometimes,  if  not 
always,  does  in  fact  extend  beyond  the  precise  point  we  have 
PU]iposed,  whether  perceptible  to  the  casual  eye  or  not."  And 
ho  then  proceeds  to  quote  from  Hadficld's  Cases.  See  1  Bish. 
Xew  Cr.  Law,  sees.  393,  394.  See,  also,  Busw.  on  Insan.,  sees. 
429,  430.  "Now,  if  delusion  is  a  feature  of  insanity,  and  if  a 
jjorson  overcome  with  such  delusion  does  an  act  while  under  its 
influence  for  which  the  law  would  not  hold  him  amenable,  it  is 
important  that  the  exact  facts  and  conditions  and  moving  cause 
to  such  delusion  be  proved.  The  delusion  of  appellant  in  this 
case  was  not  solely  that  appellant  believed  a  mob  was  in  pursuit 
of  him,  but  that  that  mob  was  led  on  by  a  particular  individ- 
ual,— Brown,  the  deceased.  If  Brown  did  belong  to  the  mob, 
there  would  be  much  greater  reason  afforded  why,  under  the 
spell  of  the  delusion,  appellant  should  have  slain  him.  If,  ac- 
cording to  appellant's  conception.  Brown  did  l)elong  to  the  mob, 
much  more,  if  he  were  the  leader  of  same,  would  it  appear  that 
appellant's  act  in  slaying  Brown  was  the  result  of  his  insane 
delusion.  The  court,  however,  seems  to  have  concluded  that  the 
insane  delusion  could  be  proved,  and  a  most  important  feature 
omitted  therefrom.  That  is,  according  to  the  court's  idea,  it 
was  entirely  competent  to  prove  that  appellant  was  deluded  as 
to  a  mob  in  pursuit  of  his  life,  but  it  could  not  be  shown  in  con- 
nection therewith  who  composed  the  mob.  In  the  view  we  take 
of  this  question,  we  fail  to  see  of  what  avail  all  the  proof  offered 
by  api>ellant  concerning  the  mob  in  pursuit  of  his  life  would  he 
to  him,  if  he  Avas  not  permitted  to  show  who  composed  that  mob. 
The  very  essence  of  appellant's  delusion  was  that  the  mob  was 
led  on  by  the  deceased,  if  he,  indeed,  was  not  the  entire  mob, 
and  that  under  such  belief  he  slew  him ;  yet  we  have  seen  from 
the  bills  of  exception  above  stated  that  appellant  was  denied 
this  proof.  In  our  opinion,  this  was  material  error  on  the  part 
of  the  court. 

Appellant,  by  his  bill  of  exceptions  !N'o.  14,  shows  that  he  in- 
troduced his  Avife  and  proved  certain  facts  by  her.  The  bill 
further  shows  that  on  cross-examination  the  Stote  was  per- 
mitted to  show  other  and  different  facts,  not  germane  or  per- 


ii': 


,'' 


bf'i 


wili'i.s 


Ml 


n 


'    ^ ; 


WfM. 

! 

1 

^W' 

? 

b2i 


AMERICAN  CRIMINAL  REPORTS. 


tinont  to  those  clicitod  on  direct  cxaiiiinntion.  Some  of  those 
facts  elicited  on  cross-exaniiimtion  were  of  n  damaging  char- 
acter, and  calcuhited  to  greatly  prejudice  appellant  before  tlio 
jury.  This  was  independent  testimony,  and  the  use  of  the  wife 
as  a  witness  against  the  husband,  which  was  not  admissiUle. 
See  Jones  v.  State,  :58  T(>x.  Crim.  Kep.  87,  40  S.  W.  Hep.  807; 
Clahies  v.  State,  38  Tex.  Crim.  Kep.  202,  42  S.  W.  Rep.  ;}8.->, 
and  authorities  cited.  Yor  was  it  permissible  to  hiy  the  predi- 
cate by  the  wife  of  appellant  as  to  matters  about  which  she 
could  not  be  croas-examined,  in  order  to  impeach  her. 

Wo  believe  that  it  was  competent  to  impeach  the  witness 
White  by  showing  that  he  had  been -indicted  for  forgery. 

By  bill  of  exceptions  Xo.  21  appellant  objected  to  the  tes- 
timony of  Dr.  Withers  as  an  expert  us  to  the  sanity  of  appel- 
lant. The  bill  shows  that  Dr.  Withers  had  been  the  family  phy- 
sician of  defendant  up  to  the  year  1891,  a  period  of  ten  years; 
that  he  had  only  seen  appellant  since  that  time  once  or  twice, 
and  then  only  casually.  On  this  general  statement  he  was  per- 
mitted to  give  his  opinion  as  to  the  sanity  of  appellant.  Wo 
take  it  that  the  bill  sufficiently  shows  an  acquaintance  and 
knowledge  on  the  part  of  the  witness  to  testify  on  that  subject, 
but  by  a  fuller  examination  of  the  witness  on  this  subject  the 
difficulty  will  no  doubt  be  obviated. 

We  do  not  believe  that  it  was  competent  for  the  deputy 
sheriff,  McConnell,  to  testify  that  he  heard  the  defendant  tes- 
tify in  a  certain  case  tri(.'d  a  few  weeks  before,  and  in  that  caso 
he  testified  like  a  sane  man. 

No  exception  was  resen'cd  to  the  charge  of  the  court  on  in- 
sanity, but,  in  view  of  another  trial,  we  would  observe  that  the 
charge  of  the  court  on  this  subject  may  be  well  enough  as  far  as 
it  goes,  but  it  does  not  apply  the  law  to  the  facts  of  the  case. 
We  think  that  the  court  should  give  the  jury  a  charge  on  in- 
sanity as  applicable  to  the  facts  proved.  In  this  case  appel- 
lant's proof  tended  to  show  that  he  was  ovenvhelmed  at  the 
time  of  the  homicide  with  an  insane  delusion  that  deceased  was 
the  lender  of  a  mob  that  was  seeking  his  life.  If  he  was  insane 
on  that  subject,  and  if,  under  that  delusion,  he  was  incapable 
of  distinguishing  between  right  and  Avrong  of  the  particular  act 
he  was  doing,  and  he  believed  that  in  slaying  Brown  he  was 


10  of  tlioso 
gi'ife'  flinr- 
hotorc  tlio 
)f  tlip  wifo 
i<ltnissil)lo. 
liop.  807; 
Rop.  ;j8.j, 
the  prodi- 
"■liic'li  slio 

0  witness 

•7- 

0  the  tos- 
of  nppol- 
III  ily  pliy- 
en  yeiirs; 
or  twico, 
was  per- 
mt.  Wo 
inco  and 

t  8llI)jcof, 

bject  the 

>  deputy 
Jant  tes- 
:liat  caso 

"t  on  I'n- 
that  thp 
IS  far  as 
lie  caso. 
5  on  in- 
!  appel- 

at  the 
sod  was 

insane 
capable 
dar  act 
he  was 


FLANAGAN   v.  STATE. 


o'2o 


jji-cscrving  his  own  life  from  the  iiiol),  then  he  was  not  crim- 
inally rt'sponsiblo,  and  the  jury  should  bo  instructdl,  if  they 
helieve  the  homicide  occurred  under  such  circumstances,  to  ac- 
(juit  hiin. 

The  judgment  is  reversed  and  the  cause  remanded. 


Flaxacjax  v.  Statr. 

103  Ga.  619—30  S.  E.  Rep.  550. 

Decided  March  22,  1898. 

Dem'sioxat.  Insanity:  PAnAxoiA:  Homicu)e:  Irresistible  insane  im- 
pulse— Practice  on  special  issues  of  insanity — sound  common-law 
discretion  of  the  court  on  suggestions  of  insanity — Evidence — Iti- 
atructiona. 

1.  No  person  Indicted  for  crime  can,  under  sections  951  and  953  of 

the  Penal  Code,  as  matter  of  right,  demand  more  than  one  trial 
upon  a  special  plea  of  Insanity  at  the  time  of  trial.  If,  after  such 
a  plea  has  been  found  against  the  person,  the  trial  in  chief  has 
been  postponed,  It  would  be  a  matter  within  the  sound  discretion 
of  the  judge  whether  or  not  another  preliminary  Investigation 
upon  the  question  of  Insanity  at  the  trial  should  be  had,  and,  if 
so,  to  what  extent  and  in  what  manner  the  same  should  be  con- 
ducted. 

2.  An  exception  to  the  general  and  well-settled  rule  that  one  Is  crim- 

inally responsible  who  had  sufficient  reason  to  distinguish  between 
right  and  wrong,  as  to  a  particular  act  committed  by  him,  exists 
in  a  case  where  It  appears  that,  though  the  accused  had  such 
knowledge,  his  will.  In  consequence  of  some  delusion  brought 
about  by  mental  disease,  was  overmastered,  so  that  there  was  no 
criminal  Intent  as  to  the  act  In  question,  and  when  It  also  ap- 
pears that  this  Identical  act  was  connected  with  the  peculiar  de- 
lusion under  which  the  accused  was  laboring. 

3.  Under  the  evidence  Introduced  in  the  trial  of  the  present  case.  It 

was  erroneous  not  to  give  in  charge  to  the  jury  the  written  re- 
quest embodying  the  principle  above  announced,  the  same  not 
being  covered  in  the  court's  general  charge  to  the  jury. 

4.  Where  the  defense  relied  upon  in  a  trial  for  murder  was  irrespon- 

sibility arising  from  Insanity  at  the  time  of  the  homicide,  any 
evidence  tending  to  show  the  real  mental  condition  of  the  accused 
at  the  time  Is  relevant,  and  his  acts  both  before  and  after  the 
homicide  may  be  proved  as  tending  to  throw  light  upon  the  ques- 
tion thus  put  in  issue.  Accordingly,  it  was  not  erroneous  to  allow 
the  State  to  introduce  in  evidence  an  affidavit  sworn  to  and  sub- 
scribed by  the  accused  himself,  at  a  previous  term,  for  the  pur- 


H 


j'H' 


• ,  if,.  ,  :' ' 


■    1 

■ ;  ? 

■  If 


m:y  i 


'.ft 


m<h 


■■'■x-n, 


},  |«;ii      •    5   ...  I 


s: 


!,'■  ti.' 


lilllll! 


526  AMERICAN  CRIMINAL  REPORTS. 

pose  of  obtaining  a  continuance,  the  probative  value  and  effect 
of  such  evidence  being  a  matter  solely  for  the  determination  of 
the  jury. 
5.  Save  as  stated  in  the  third  headnotc,  the  record  discloses  no  suffi- 
cient cause  for  ordering  a  now  trial  in  this  case;  the  charge  of 
the  court,  with  the  exceptic.i  above  referred  to,  fairly  presented 
to  the  jury  the  questions  in  issue;  and  the  exceptions  to  its  relat- 
ing to  other  matters  are  not  meritorious.  There  was  no  mate- 
rial error  in  admitting  or  rejecting  evidence.  The  foregoing  cov- 
ers all  questions  requiring  special  mention  which  arose  at  the 
last  trial  and  are  likely  to  arise  at  the  next. 
(Syllabus  by  the  Court.) 

Error  to  the  De  Kalb  County  Superior  Court;  Hon.  J.  S. 
Candler,  Judge.    Reversed. 

Glenn  &  Rountree,  for  the  plaintiff  in  error. 
J.  M.  Terrell,  Atty.  Gen.,  and  W.  T.  Kimsey,  SoHctr.  Gen., 
IF.  IF.  Braswell  and  W.  L.  Wright,  for  the  State. 

Simmons,  C.  J.  Flanagan  was  indicted  for  the  offense  of 
murder.  Upon  his  arraignment  on  the  indictment,  he  filed  a 
special  plea  of  insanity,  alleging  that  he  was  then  insane.  Under 
the  provisions  of  the  Penal  Code,  §§  951,  953,  a  jury  was  s> 
lected  to  t.-y  the  issue  raised  by  this  plea.  After  hearing  the 
evidence,  the  argument  of  counsel,  and  the  charge  of  the  court, 
they  returned  a  verdict  finding  that  E.  Flanagan  was  sane  at 
that  time.  The  case  was  then  called  for  trial  upon  the  merits, 
and  the  accused  moved  for  a  continuance,  which  was  granted. 
More  than  two  months  thereafter,  the  case  was  again  called  for 
trial.  Through  his  counsel  the  accused  again  filed  a  special  plea 
of  insanity,  alleging  that  he  was  then  insane,  and  could  not, 
under  the  above  sections  of  the  Code,  be  forced  to  trial  upon  the 
merits  until  this  second  special  plea  was  tried  and  determined. 
The  State's  counsel  filed  what  they  called  a  "special  answer"  to 
this  second  plea,  wherein  they  set  up  the  former  trial  upon  a 
similar  plea,  and  averred  that  the  quesiion  of  insanity  at  the 
time  of  trial  was  res  adjudicafa.  Counsel  for  the  accused  de- 
murred to  this  answer.  The  demurrer  was  overruled  by  tlio 
court,  and  the  accused  excepted.  The  trial  then  proceeded  upon 
the  merits.  Flanagan  was  ccmvicted  of  murder,  and  his  motion 
for  a  new  trial  was  overruled.  The  judgment  overruling  this 
motion  was  excepted  to,  and  ])rought  here  for  review. 


FLANAGAN  v.  STATE. 


52T 


e  and  effect 
mination  of 

ises  no  sufll- 
le  charge  of 
ly  presented 
to  its  relat- 
as  no  mate- 
regoing  cov- 
irose  at  the 


Ion.  J.  S. 


ictr.  Gen., 

offense  of 
he  filed  a 
ne,  Untlor 
vy  was  s*j- 
iaring  the 
the  court, 
IS  sane  at 
lie  merits, 
3  granted, 
called  for 
lecial  pica 
?ould  not, 
upon  the 
terniino<l. 
nswer"  to 
\l  upon  a 
ty  at  the 
cused  dc- 
d  by  tlio 
ded  upon 
is  motion 
ding  this 


1.  One  of  the  grounds  of  the  motion  for  new  trial  alleged 
error  in  the  trial  judge  in  overruling  the  demurrer  to  the  spe- 
cial answer  of  the  State  of  the  plea  of  ''present  insanity,"  above 
alluded  to.  The  sections  of  the  Code  providing  for  this  pica, 
and  cited  above,  are  as  follows :  "Whenever  the  plea  of  insanity 
ii^  filed,  it  shall  be  the  duty  of  the  court  to  cause  the  issue  on 
tiiat  plea  to  be  first  tried  by  a  special  jury,  and  if  found  to  bo 
true,  the  court  shall  order  the  defendant  to  be  delivered  to  the 
superintendent  of  the  asylum,  there  to  remain  until  discharged 
in  the  manner  prescribed  by  law."  "Xo  lunatic,  or  person  af- 
flicted with  insanity,  shall  be  tried,  or  put  upon  his  trial,  for 
any  offense,  during  the  time  he  is  afflicted  with  such  lunacy  or 
insanity,  which  shall  be  tried  in  the  manner  hereinbefore 
pointed  out  where  the  plea  of  insanity  at  the  time  of  the  trial 
is  filed,  and,  on  being  found  true,  the  prisoner  shall  be  disposed 
of  in  like  manner."  Counsel  for  the  accused  insisted  that, 
under  these  sections,  Flanagan  could  file  this  plea,  and,  as  mat- 
ter of  right,  demand  that  it  be  tried  by  a  special  jury,  although 
it  had  once  been  20  tried  and  determined  against  him.  It  was 
argued  here  in  support  of  this  contention  that  a  person  accused 
of  crime  had  a  right,  under  these  sections,  to  file  the  plea  of 
"present  insanity"  every  time  he  was  about  to  be  tried,  and  that 
the  trial  judge  had  no  discretion,  but  was  compelled  to  impanel 
a  jury  to  try  this  issue,  regardless  of  the  fact  that  he  had  tried 
it  upon  a  former  occasion.  Were  this  true,  it  would  be  almost 
impossible  to  force  the  accused  to  a  trial  upon  the  merits  of  the 
case.  As  soon  as  one  trial  of  such  a  special  plea  was  ended  by 
an  adverse  finding,  and  the  case  was  again  called  for  trial  on 
the  merits,  the  accused  could  again  plead  present  insanity,  and 
force  the  court  to  go  over  another  trial  of  that  issue,  with  pos- 
sibly the  same  witnesses  and  the  same  evidence.  If,  in  such 
second  trial,  the  verdict  should  be  against  the  plea,  the  accused 
could  again  file  the  same  plea,  and  demand  that  it  be  again 
tried.  We  think  that  the  legislature  did  not  contemplate  such 
a  construction  of  the  act  embodied  in  these  sections  of  the  Code. 
The  intention  of  the  legislature,  as  we  gather  it  from  these  sec- 
tions and  from  the  original  act,  was  doubtless  to  give  the  ac- 
cused the  benefit  of  a  jury  trial,  in  order  to  ascertain  whether 
he  had  sufficient  mental  capacity  to  understand  the  nature  of 


\','it. 


It  ^\  ii 


528 


AMERICAN*  CRIMINAL  REPORia 


ill' 


III 


the  proceedings  against  him,  to  realize  his  peril,  and  to  assist 
his  counsel  in  his  defense,  and  that,  if  the  jury  determined  tlitit 
he  had  such  mental  capacity,  the  trial  would  proceed  upon  its 
merits.  It  was  simply  the  separate  trial  of  one  issue  of  the  case, 
and  this  one  trial  was  all,  in  our  opinion,  that  the  act  was  in- 
tended to  give  as  matter  of  right.  When  this  is  had,  the  sin" 
tory  right  of  the  accused  under  these  sections  is  exhausted. 

It  is,  however  possible,  and  in  some  cases  probable,  that  a 
]KMs<in,  sane  at  Vie  time  of  the  trial  of  the  special  issue,  may, 
where  his  case  is  continued  for  any  length  of  time,  become  in- 
sane to  such  an  extent  as  to  lack  mental  capacity  to  understand 
the  nature  of  the  proceedings  against  him,  re:ilize  his  peril,  as- 
sist his  counsel,  etc.  In  such  a  case  the  accused  would  not  be 
forced  to  trial  upon  the  merits  simply  l>ecause  a  jury  had,  at  a 
previous  term  of  court,  declared  him  then  sane.  His  statutory 
rights  under  the  Code  sections  above  cited  would  have  becTi  ex- 
hausted, but  resort  coiild  still  be  had  to  his  common-law  reme- 
dies. Under  the  common  law,  when  a  suggestion  of  insanity 
was  nuide  upon  arraignment,  the  judge  always  investigated  the 
case,  and  determined  for  himself  whether  the  accused  had  suffi- 
cient mental  capacity  to  go  to  trial.  We  think,  thereforc,  that 
even  after  a  jury  had  passed  upon  the  plea  of  insanity  at  the 
time  of  trial,  and  had  determined  it  against  the  accused,  where 
it  is  suggested  to  the  judge  that  since  the  time  of  such  finding 
the  mind  of  the  accused  had  materially  changed  and  that  I'e  is 
now  in  such  a  mental  condition  as  that  he  should  not  be  put 
upon  trial,  the  judge  should  nuike  the  proper  investigation  to  as- 
certain the  truth  of  the  suggestion.  He  may  do  this  in  any 
right  and  proper  manner, — by  impaneling  another  jury  if  he 
deem  it  best  to  do  so,  by  considering  the  affidavits  of  experts, 
by  a  personal  examination  and  inspection,  or  otherwise.  In 
1  Bishop's  N^ew  Criminal  Law,  in  the  footnote  to  section  3T(t, 
an  account  is  given  of  the  trial  of  Freeman,  who  was  tried  and 
ciiuvicted  of  murder.  It  appears  from  this  account  that  Fren- 
nian  upon  arraignment  had  filed  a  plea  similar  to  the  special 
])lea  in  the  present  case,  and  that  it  was  found  against  him  by 
the  jury.  Afterwards  he  was  tried  upon  the  merits  of  the  case, 
and  convicted.  The  Supreme  Court  granted  a  new  trial.  ^\v. 
Bishop  says:    "Thereupon  the  judge  of  the  higher  court,  who 


FLANAGxVN  v.  STATE 


529 


Avas  to  preside  at  the  new  trial,  visited  the  prisoner  in  jail,  and, 
in  consequence  of  what  there  appeared  of  his  mental  condition, 
refused  to  proceed  with  the  trial."  The  man,  he  states,  subse- 
quently died  in  prison,  indubitably  insane.  Under  the  Code 
sections  above  set  out,  we  think  that  the  accused  has  no  statutory 
right  to  more  than  one  jury  trial  upon  the  issue  of  insanity  at 
the  time  of  the  trial ;  but,  under  his  couunon-law  rights,  he  can 
at  all  trials  suggest  to  the  trial  judge  his  incapacity,  by  reason 
of  mental  weakness,  to  go  to  trial,  and  appeal  to  the  discretion 
of  the  judge,  just  as  may  be  done  by  a  party  to  a  civil  action  or 
by  a  person  accused  of  crime  when  he  is,  by  physical  weakness 
or  sickness,  incapacitated  for  trial.  If  a  person  accused  of 
crime  is  too  ill  to  undergo  trial  at  the  time  it  is  called,  he  niiiy 
ni)j)eal  to  the  court  for  a  postponement  or  continuance.  The 
court  in  such  a  case  can  investigate  the  illness  for  himself  by  an 
insj)ection  of  the  accused,  or,  as  is  frequently  done,  by  taking 
the  opinions  of  experts  upon  the  subject,  and  may  grant  or  re- 
fuse the  request  in  his  discretion. 

2,  3.  On  the  trial  upon  the  merits,  counsel  for  Flanagan 
claimed  that,  although  he  conunitted  the  homicide,  he  was  not 
guilty  of  any  crime,  because,  by  reason  of  a  delusion  under 
which  he  was  laboring  at  the  time  of  the  killing,  he  was  unable 
to  form  in  his  mind  an  intent  to  conmiit  a  crime.  They  claimed 
that  he  was  laboring  under  a  form  of  mental  distress  known  as 
"paranoia"  or  delusional  insanity;  that  a  person  afflicted  with 
such  mental  disease  has  a  delusion  or  delusions  which  dominate, 
but  do  not  destroy,  the  mental  capacity;  and  that,  although  the 
accused  was  sane  as  to  other  subjects,  on  that  of  the  delusion 
and  its  direct  consequencer  be  was  an  insane  man.  They  further 
contended  that  the  delusion  of  this  case  was  one  known  as  the 
delusion  of  persecution,  and  that  Flanagan,  believing  that  he 
was  being  imjustly  persecuted  by  persons,  and  that  he  was  en- 
deavoring to  escayie  from  his  persecutors,  and  finding  his  escape 
cut  off,  and  that  there  was  nothing  else  to  do  but  to  slay  his 
]M»rsecutors,  proceeded  to  do  so.  They  claimed  that  if  all  of 
these  contentions  were  true  and  the  accused  acted  under  these 
delusions,  he  was  not  responsible  for  the  killing.  There  was 
evidence  sufficient  to  sustain  the  theory  of  delusion,  an<l  upon 
this  evidence  counsel  for  the  accused  requested  the  court,  in 
Vol.  XI -34 


*"(i, 


^}':^- 


ym 


l'  If? 


m 

V:  I'- 


ll I 


11 


530 


AMERICAN  CRIMINAL  REPORTS. 


i||B|iii!: 


11^::  ^v 


-writing,  to  give  the  following  charge  to  the  jury:  "Was  the 
defendant  at  the  time  of  the  commission  of  the  alleged  crime,  as 
matter  of  fact,  afflicted  with  a  disease  of  the  mind  so  as  to  he 
insane?  If  such  he  the  case,  did  he  know  right  from  wrong  as 
applied  to  the  particular  act  in  question  ?  If  he  did  not  have 
such  knowledge,  he  is  not  legally  responsible.  If  he  did  have 
such  knowledge,  he  may  nevertheless  not  be  legally  responsible, 
if  the  two  following  conditions  concurred:  (1)  If,  by  reason 
of  the  duress  of  such  mental  disease,  he  had  so  far  lost  the  power 
to  choose  between  right  and  wrong  and  to  avoid  doing  the  act 
in  question,  as  that  free  agency  was  at  the  time  destroyed. 
(2)  ^Vnd  if  at  the  same  time  the  alleged  crime  was  so  connected 
with  such  mental  disease  in  the  relation  of  cause  and  effect  as  to 
have  been  the  produce  of  it  solely."  The  judge  refused  to  give 
this  request  in  charge  to  the  jury,  but  charged  generally  the 
doctrine  that  one  is  mentally  responsible  who  has  sufficient 
reason  to  distinguish  between  right  and  wrong  as  to  the  particu- 
lar act  committed  by  him;  and,  on  the  subject  of  delusions, 
charged  as  follows :  "If,  in  consequence  of  a  delusion  connected 
with  the  act  in  question,  the  will  is  overmastered  and  the  reason 
is  dethroned  as  to  that  particular  act,  there  is  no  criminal  intent 
as  to  that  act,  and  hence  no  criminal  responsibility  for  that  act. 
But  it  is  not  every  delusion  of  a  man  that  would  render  one  ir- 
responsible ;  it  must  be  such  a  delusion  as  is  connected  with  the 
act  in  question,  and  must  be  such  a  delusion  as  overmasters  the 
will  and  dethrones  reason  as  to  that  particular  act." 

We  think  the  court  erred  in  refusing  to  give  in  charge  the 
Avritten  request  or  its  substance,  and  that  he  also  erred  in  the 
charge  he  did  give  upon  the  subject.  Courts,  both  in  this  coun- 
try and  in  England,  have  for  a  long  time  differed  as  to  the 
soundness  of  the  doctrine  of  the  request  above  set  out,  but  this 
court  has  been  committed  to  it  for  over  fifty  years.  In  the  case 
of  Boherts  v.  State,  3  Ga.  310,  Tsisbet,  J.,  discusses  the  subject 
of  insanity  and  delusions,  in  an  exhaustive  opinion.  That  case 
announced  the  following  proposition  as  the  law  upon  this  ques- 
tion: "If  a  man  has  r'^ason  sufficient  to  distinguish  between 
right  and  wrong  in  relation  to  a  particular  act  about  to  be  com- 
mitted, he  is  criminally  responsible.  An  exception  to  this  rule, 
however,  is,  where  a  man  has  reason  sufficient  to  distinguish  be- 


FLAVAGAN  v.  STATR 


531 


tween  right  and  wrong  as  to  a  particular  act  about  to  bo  com- 
mitted, yet,  in  consequence  of  some  delusion,  the  will  is  over- 
mastered and  there  is  no  criminal  intent.  Provided,  that  the  act 
itself  is  connected  with  tlie  peculiar  delusion  under  which  the 
])risoner  is  laboring."  This  case  has  never  since  been  overruled, 
doubted  or  questioned  by  this  court,  but  has  been  recogni/x'd 
and  approved  in  the  only  two  cases  where  the  subject  of  doln- 
sions  has  been  treated  since  that  time.  In  the  case  of  Dcinforfh 
V.  State,  75  Ga.  614,  it  appears  that  the  trial  judge  followed  it 
and  that  his  charge  was  approved  by  this  court.  In  the  case 
of  CaiT  V.  State,  96  Ga.  284,  the  docti-ine  of  the  Roberts  Case 
was  again  recognized  by  tlie  court.  There  are  numerous  other 
cases  in  our  reports  Avhich  lay  down  the  rule  as  announced  in  the 
first  lines  of  the  above  quotation  from  the  Roberts  Case,  but  in 
none  of  them,  so  far  as  we  now  recollect,  was  the  question  made 
as  to  delusions.  The  right  and  wrong  theory  being  the  general 
test,  it  was  not  in  tliose  cases  necessary  to  deal  with  the  excep- 
tion. 

As  before  remarked,  the  doctrine  of  the  Roberts  Case  was  an- 
nounced directly  after  this  court  was  organized  and  has  never 
since  been  questioned  or  doubted  by  this  court.  It  is  cited  with 
approval  in  the  leading  works  on  criminal  law  and  medical  ju- 
risprudence written  in  this  country,  and  by  many  decisions  of 
the  different  State  courts.  Its  doctrine  is  the  one  which  has 
been  adopted  generally  by  the  modeiTi  text-writers  on  criminal 
law,  and,  we  believe,  by  a  majority  of  the  State  courts.  Xot 
only  is  this  principle  approved  by  all  of  these  authorities,  but 
we  think  it  commends  itself  as  being  soiind  and  reasonable.  If 
a  man  has  delusions  produced  by  a  disease  of  the  mind,  and  by 
reason  of  those  delusions  his  will  is  completely  overmastered  so 
that  he  has  no  power,  even  though  he  can  distinguish  between 
right  and  wrong,  to  adhere  to  the  one  or  to  avoid  the  other,  ho 
has  not  the  capacity  to  form  a  criminal  intent.  A  person  af- 
flicted with  such  a  disease  of  the  mind  may  know  that  a  particu- 
lar act  is  wrong  and  believe  that  he  will  be  punished  for  it,  and 
yet,  if  he  is  laboring  under  a  delusion  and  his  will  is  overpow- 
ered by  an  irresistible  impulse  which  results  from  his  pecidiar 
delusion,  he  cannot  bo  held  criminally  rcspnnsilik^  for  the  coin- 
mission  of  the  act.    Will  is  as  necessary  an  element  of  intent  as 


i'h 


V :.  ? 


1  :■'-  (.i 


•'ill; 


,  f 


!'  i  M 


I'ffi  ■ 


■if  rM 


if:; 


532 


AMERICAN  CHIMIN AL  REPORTS. 


are  reason  and  ju(lf;inent  On  this  subject  see  1  Bishop's  Xew 
Crini.  Law,  §  374  ct  ticq.;  1  Wliarton's  Crini.  Law,  §  32  ct  scq.; 
Taylor's  iMed.  Juris.  (11th  Am.  ed.),  680,  080,  728,  721);  Par- 
sons V.  Stale,  81  Ahi.  577;  Slate  v.  Johnson,  40  Conn.  130; 
Macfarland's  Trial,  8  Abb.  Pr.  Kep.  (N.  S.)  57;  Common- 
wealth  V.  Hogers.  7  Mete.  (Mass.)  500;  Smith  v.  Common- 
wealth, 1  Duv.  (Ky.)  224;  (Jrahani  v.  Commonwealth ,  10  15. 
]\lon.  (Ky.)  5!)1  ct  seq.;  Commonwealth  v.  Ilaskel,  2  IJrevst. 
400;  Dunn  v.  People,  101)  JU.  035;  Sawyer  v.  State,  35  Ind. 
80;  State  v.  Feller,  25  Iowa,  67;  Fonts  v.  Slate,  4  G.  Greene, 
500;  Stale  v.  Pike,  4!)  X.  K.  441;  State  v.  Jones,  50  X.  IL 
3<I!>;  Commonwealth  r.  Mosler,  4  Pa.  St.  204;  Stale  v.  Windsor, 
5  JIarr.  (Del.)  512;  People  v.  Klein,  1  Edni.  Sel  Cas.  35; 
Coylee  v.  Commonwealth,  100  Pa.  St.  573;  S.  C,  45  Am.  Re]). 


31)7. 


The  eharjje  of  tlie  court  on  this  subject,  as  given,  eliminated 
entirely  the  principle  above  discussed.  It  required  the  jury  to 
find,  not  only  that  the  will  was  overpowered,  but  reason  de- 
throned, before  they  could  aecpiit  the  accused  on  the  ground  of 
delusional  insanity.  According  to  the  Roberts  Case  and  the 
authorities  cited  above,  a  man  may  know  and  may  reason  that 
the  act  about  to  be  committed  is  wrong,  and  yet,  if  the  will  be 
overnnistered  by  reason  of  mental  discnse,  and  he  has  so  far  lost 
the  power  to  choose  between  the  right  and  ihe  wrong,  and  to 
avoid  doing  the  act  in  (piestion,  as  that  free  agency  is  at  the  time 
destroved,  and  the  act  done  is  so  connected  with  the  delusion 
])roduced  by  such  mental  disease  in  the  relation  of  cause  and  ef- 
fect as  to  have  been  the  result  of  it  solely,  he  is  not  criminally 
responsible.  The  charge  of  the  trial  judge  is  directly  in  con- 
flict with  the  Jioljerls  (^ase,  ami  the  authorities  h(>re  cited,  and 
a  different  test  is  retjuired  in  cases  of  this  kind.  The  exception 
to  the  right  and  wrong  test  announced  in  the  lialierls  Case  by 
Judge  Xisbet  was  not  given  in  charge  to  the  jury,  and  they 
therefore  did  not  pass  upon  the  question  made  in  that  excep- 
tion,— that,  if  a  man  has  reason  sufHcient  to  <listiiiguish  between 
right  and  wrong  as  to  a  jtartieular  act  about  to  be;  committed, 
yet,  in  consequence  of  some  delusion,  produced  by  a  disease  of 
the  mind,  the  will  is  overmastered,  there  is  no  criminal  intent 
if  the  act  itself  be  connected  with  the  pecidiar  delusion  under 


op's  Xew 
!2  ct  scq. ; 
r2i);  I'ar- 

lllll.    1,']G; 

Vummoii- 
Cuiiinion- 

fii,  k;  I  J. 

i  Jircvst. 
,  35  liul. 
Gr(>oii(', 
>0  X.  II. 
Witulsur, 
Cas.  ;;.-); 
Am.  Hop. 

liiiiiiiatod 
e  I'urv  to 
L\'ison  (1(>- 
:roim(l  of 
and  the 
a son  that 
le  will  bo 
o  far  lost 
j:,  and  to 
tlio  timo 
delusion 
e  ami  of- 
•iniinally 
/  in  con- 
itod,  and 
exception 
Case  by 
ind  thoy 

it    0X00 p- 

botwoon 
iiMiiltod, 
i sea so  of 
1 1  intont 
n  nndor 


FLANAGAN  v.  STATE. 


688 


Avhi-ch  tho  mind  is  laboring.  The  trial  judge  shouhl  have  given 
this  exception  in  oharge,  and  required  the  jury  to  find,  as  mat- 
ter of  fact,  nn(!"r  the  evidence,  whether  the  will  of  the  accused 
Avas  so  overpowered  by  reason  of  a  delusir)n  produced  by  mental 
disease  that  he  could  not  resist,  although  he  might  have  known 
that  iho  act  itself  was  wrong,  and  also  to  determine  whetluir  or 
not  the  act  committed  was  connected  with  the  delusion,  and 
])rodueed  solely  by  it.  We  think  the  court  erred  in  refusing  to 
give  the  written  request  to  charge  to  the  jury,  and  also  that  ho 
erred  in  charging,  as  he  did,  on  the  subject  of  delusions.  For 
these  reasons  only,  we  reverse  the  case,  and  order  a  new  trial. 
If  the  accused  was,  under  the  law,  responsible  for  his  acts,  he 
is  gniilty  of  a  horrible  murder.  If  he  was  not  so  responsible,  he 
is  entitiod  to  an  acquittal.  Whether  he  be  guilty  or  innocent,  ho 
has  not,  in  our  opinion,  had  a  fair  and  impartial  trial  under 
the  constitution  and  laws  of  his  State;  and,  so  believing,  wo  are, 
under  our  oaths,  compelled  to  grant  him  a  new  trial. 

4.  When,  after  tho  trial  of  tho  issue  raised  by  the  special 
])lea  of  insanity,  the  ease  was  called  for  trial  uptm  its  merits, 
tho  accused  moved  for  a  Oimtinuance  upon  the  ground  of  tho 
illness  of  his  leading  counsel.  In  a  written  affidavit  made  in 
support  of  this  motion,  ho  alleges  the  emiiloymont  of  his  leading 
cnuiisol,  that  he  relied  solely  upon  him,  that  ho  had  7un-or  con- 
sulted with  junior  counsel,  etc.  The  continuance  was  granted. 
At  the  trial  u])i>n  the  merits,  at  a  suoceoding  term,  counsel  for 
the  State  offered  the  affidavit  in  evidence,  and  it  was  admitted 
ov(M'  the  objection  of  counsel  for  the  accused.  It  was  not  error 
to  iidmit  this  affidavit  in  evidence.  Wo  think  it  is  now  well 
scttlci]  that,  in  testing  the  state  of  mind  at  a  given  period,  evi- 
dence may  1k'  admitted  as  to  tlie  state  of  mind  both  before  and 
aft(>r  that  time  1  Dish.  Xew  ('rim.  Lav.  jJ  385.  And,  to  as- 
«H>rtain  the  state  of  n\ind  as  to  a  particular  subject,  we  may  look 
ic  e\  ideiice  i^i  its  condition  as  lo  other  subject-.  ThirJ.  The  ])ro- 
bativi"  forci>  of  the  ovidtMice  is,  of  course,  a  iinestinu  for  tho 
jury.  The  affidavit  admitted  may  illustrate  tho  state  of  mind 
of  the  accus(>d  at  tho  time  of  the  connnission  of  the  homicide, 
or  it  may  not.  Speaking  for  myself,  knowing,  as  I  do.  how  ibese 
affidavits  for  contiiuianees  luv  j^roparod  by  counsel.  I  should 
give  such  an  alHdavit  Utile  attention  in  a  trial  like  this  were  I 


111'. 


u3-l 


AMERICAN  CRIMINAL  REPORTS. 


:  I 


■i; 

I'l 

i' 

i 

i 

•1 

1    ■ 

-1 

i 

, 

! 

1 

on  the  jury.  It  was  matlc  five  months  after  the  time  of  the 
homicide,  and  docs  not  relate  directly  to  the  subject  on  which 
the  accused  is  claimed  to  bo  insane.  Still,  as  it  may  have  been 
of  some  value  to  the  jury,  it  was  admissible,  and  the  trial  judge 
did  not  err  in  overriiling  the  objections  made  to  its  introduction. 
5.  There  are  other  questions  made  in  the  record,  but,  with  the 
exception  referred  to  in  the  third  headnote,  there  is  no  material 
error  in  any  of  those  which  we  deem  it  necessary  to  consider. 
As  to  whether  the  court  erred  in  not  granting  a  change  of  venue 
is  not  passed  upon,  for  the  same  conditions  and  circumstances 
may  not  exist  at  the  next  trial.  Xor  do  we  rule  upon  the  re- 
fusal of  the  court  to  allow  the  recall  of  one  of  the  medical  ex- 
perts to  the  stand,  for  the  accused  will  have  an  opportimity,  at 
the  next  trial,  to  elicit  his  opinion.  It  is  claimed  that  the  judge 
refused  to  allow  the  accused  to  complete  his  statement  to  the 
jury,  and  that  one  of  the  jurors  was  prejudiced  against  the  ac- 
cused, but  these  questions  are  not  at  all  likely  to  arise  at  another 
trial,  and  we  therefore  do  not  rule  upon  them.  The  charge  uf 
the  court,  save  as  to  the  matter  of  delusional  insanity,  wiis  full 
and  fair,  and  the  exceptions  to  it  relating  to  matters  other  tluin 
as  ruled  in  the  third  headnote  are  not  meritorious.  There  was 
no  material  error  in  admitting  or  rejecting  evidence.  Judg- 
ment reversed.  All  the  justices  concurring,  except  Lewis,  J., 
disqualified. 


Flanaqait  v.  State. 


106  Ga.  109—32  S.  E.  Rep.  80. 

Decided  December  13,  1898. 

Insanity:     Hypothetical    Questions:     Expert    Evidence: 
trial — Prejudice  of  juror — Illness  of  counsel. 


Homicide 


1.  It  was,  in  a  trial  for  murder  in  which  the  sole  defense  was  that 
the  accused  was  insane  at  the  time  of  the  homicide.  Improper 
and  illegal  to  allow  the  following  question  to  he  propounded  to 
an  expert  witness,  the  answer  thereto  being  in  the  negative: 
"State  whether,  in  your  opinion,  from  your  examination  of  [the 
accusedl,  from  all  that  you  know  of  him,  have  observed  of  him, 
or  heard  of  him,  he  was  laboring,  at  the  time  this  crime  was  com- 
mitted, under  any  overmastering  delusion." 


"^p 


FLANAGAN  v.  STATE. 


535 


2.  A  new  trial  Is  granted  In  the  present  case,  not  only  because  of  the 
error  indicated,  but  also  because  the  record  discloses  grave  rea- 
sons for  fearing  that  one  of  the  jurors  was  not  impartial,  and 
also  because  It  appears  that  the  leading  counsel  for  the  accused 
was  so  HI  before  the  trial  concluded  that  he  was  not  in  proper 
pbysical  condition  to  give  to  the  case  that  degree  of  care  and  at- 
teniJon  which  its  importance  required. 

8.  The  numerous  grounds  of  the  motion  for  a  new  trial  not  referred 
to  In  the  preceding  notes  do  not  present  any  question  which  is 
essential  to  decide  at  this  time. 
(Syllabus  by  the  Court.) 

4.  An  expert  witness  should  not  be  allowed  to  give  opinions  based 
on  undisclosed  information,  hearsay,  or  upon  the  results  of  his 
own  unexplained  observations. 

6.  It  is  imperative  that  the  jury  be  apprised  of  the  facts,  circum- 
stances and  conditions  upon  which  the  expert  founds  his  opin- 
ions, and  the  questions  should  clearly  refer  to  such  means  of 
knowledge;  otherwise  the  jury,  not  knowing  upon  what  condi- 
tions such  opinions  are  founded,  cannot  intelligently  determine 
to  what  weight,  If  any,  they  are  entitled.  (Pars.  4  and  5  by  the 
Editors.) 

Error  to  the  Do  Kalb  County  Superior  Court;  Hon.  J.  S. 
Candler,  Judge. 

Glenn  &  Rouutrce  and  G.  C.  Spence,  for  the  plaintiff  in  error. 
J.  il/.  Tenell,  Atty.  Gen.,  and  17.  T.  Kimsey,  Solctr.  Gen., 
for  the  State. 

SnmoNS,  C.  J.  Flanagan  was  indicted  for  murder,  and  di^- 
fended  on  the  ground  of  insanity.  The  jury  returned  a  verdict 
of  guilty,  but  a  new  trial  was  granted.  Flaiuigan  v.  Stale,  10;{ 
Ga.  619,  30  S.  E.  Rep.  .550.  Upon  his  second  trial,  the  accused 
was  again  convicted,  without  recommendation.  Ilis  motion  for 
a  new  trial  was  overruled,  and  he  excepted. 

1.  The  following  question  was  propounded  by  the  State's 
counsel  to  one  of  the  expert  witnesses  introduced  by  the  State : 
"State  whether,  in  your  opinion,  from  your  examination  of 
[the  defendant],  from  nil  that  you  know  of  him,  have  observed 
of  him,  or  heard  of  him,  he  was  laboring,  at  the  time  this  crime 
was  committed,  under  an  overmastering  delusion."  To  this 
question  the  witness  was  allowed,  over  the  objection  of  the  de- 
fendant's counsel,  to  give  a  negative  answer,  the  o])joetions  made 
to  the  question  being  that  it  was  "not  in  proper  shape,"  was 
"not  a  proper  question  for  the  witness  to  fonn  an  opinion  on," 


m- 


.'<  > 


m 


.  . 


« '   i: 


u 


53G 


AMERICAN  CRIMINAL  REPORTS. 


and  was  "not  n  proper  liypothotical  question."  To  this  rnliii<^ 
exception  was  taken.  An  expert  on  insanity,  ns  was  the  witness 
of  wjjose  evidence  coinphiint  is  here  nunle,  may  give  an  oj)ini(in 
hnsed  njjon  iiis  own  examination  of  a  person,  npon  his  ohsei'va- 
tion  of  that  person,  or  upon  any  state  of  faets,  supportcMl  liy 
some  evich'nce  in  the  case,  whicli  he  assumes  as  true.  Tlie  jury 
slioulil  he  informed  whether  he  hases  his  o])inion  on  his  own 
hnowl(>d^o  or  ui)on  a  hypothetical  state  of  facts,  and  sliould 
know  what  ])ortion  of  the  eviih'iice  lie  has  assume(l  to  l)e  true  in 
fonning  Ids  o])inion.  Jn  the  present  case,  tlie  witness  gave  an 
opinion  which  may  have  been  based,  in  whoh'  or  in  part,  \i[)nn 
what  he  had  heard  of  the  defendant ;  and  we  think  it  should  not, 
have  been  re"eive(h  Siipi)ose  anotlier  expert  witness  had  testi- 
fied that,  from  what  he  luid  heard,  the  liomicide  was  committal 


under  an  overmastenn 


n  (h'h 


h 


d  tl 


usion ;  now  could  tlie  jury  liave  pos- 


sibly derived  any  assi>tance  from  this  evidence'^  Tlu;  two  ex- 
])erts  might  have  testified  thus  contradict(U'ily,  and  yet  been  eacii 
correct,  because  of  their  having  heard  very  different  things  of 
the  defendant,  and  tlu^  iurv  would  have  been  imable  to  form  aiiv 
conclusion  as  to  the  truth  of  the  facts  upon  which  either  opiiiinii 
Avas  based.  "It  has  lu'ver  been  held  that  a  medical  expert  has 
the  right  to  give  in  evidence  an  opinion  based  on  information 
Avliich  he  has  derived  from  ])rivate  conversations  with  thinl  par- 
ties." ]iogers,  Expert  'I'est.,  >?  40;  Louisrillc,  clc.  ////.  ('a.  r. 
IShln's,  lOS  ill.  017,  O-'U).  ''KxjH'rt  opinions  are  admissible  if 
based  ui)on  a  state  of  facts  which  the  evidence  on  behalf  of  either 
Itarty  tends  to  establish;  but  the  jury  should  know  upon  what 
facts  the  opinion  is  foundcMl,  f(»r  its  pertinence  depends  u])on 
whether  the  jury  find  the  facts  on  which  it  rests.  .  .  .  An 
opinion,  based  mainly  u])on  representations  out  of  court,  can  be 
no  more  com])etent  testimony  than  the  representations.  If  the 
jury  are  not  informed  what  the  re))resentations  were,  they  do  not 
know  u]»oii  what  hypothesis  of  facts  the  o])i)iion  rests,  if  they 
are  iufornu>d,  they  are  still  left  with  no  evidence  of  the  existence 
of  the  facts,  exci^jit  luisworu  declarations  of  a  third  jx'rson  out 
of  court,  which  vro  not  ]>roof  in  courts  oi'  law."  W'cllicrhec'n 
Ex'rs  V.  Wdherhee's  Heirs,  38  Vt.  4.54.  See,  also,  Jleald  r. 
Thiii'j,  4.')  Me.  l]U-2;  Jhiiil  r.  :<((tle,  \)  Tex.  (^rim.  Apj).  1(50; 
rolk  V.  Slale.  ;50  Ark.  124;  Ihird  v.  lUnlroad  Co.,  41)  Iowa, 


FLANAGAN  v.  STATE 


537 


Ills  rnliii<r 

IC  witlU'SH 

11  opinion 

n  oli.scrvii- 
portcd  liy 
"lie  j lin- 
ing own 
1<1  slioiiM 
K'  true  in 
<  iHJivc  iin 
irt,  iii)iin 
lioiiM  not 
111(1  tcsli- 
'iniiiitfcil 

IlilVC  |)()S- 
!  two  CX- 
)0(M1  Cilcll 

lliinys  of 
form  iuiv 
I"  opininn 
qxTt  luis 
onniilion 
lii rd  |)iir- 

'/.  ('<-:  r. 
issihic  if 

of  cither 
»on  wliiit 
Ills  n])on 

.     An 
t,  f'iiii  lie 

If  I  ho 
y  (h»  not 
If  they 
'xist<inco 
I'son  out 
licr/tcr'n 
I  CO  Id  r. 
J).  1(!0; 
I)  Iowa, 


•  70;  Lnwson,  Exp.  &  Op.  Evid.,  Ul  el  scq,  ''Afodical  men  arn 
ppnuittod  to  give  their  opinion  as  to  tiic  sano  or  insiiiic  stati'  of 
a  jHTson's  mind,  not  on  thoir  own  ohscrvations  only,  but  on  tlio 
case  itsplf,  as  proved  by  other  witnesses  on  the  trial;  ami,  while 
it  is  in>i)ro]ier  to  ask  an  expert  what  is  his  oi)inion  upon  the 
case  on  trial,  he  may  be  asked  his  opinion  upon  a  similar  case 
hypothetically  stated."  Clioicc  r.  Stale ,  .Tl  (Ja.  4(!S.  In  tlu^ 
])r('sent  ca.-e,  the  expert  witness  testified  as  to  his  opinion,  l)M<e  I, 
to  how  great  an  extent  does  not  ajjpear,  upon  what  he  had  heard. 
The  jury  bad  no  possible  means  of  knowing  whether  his  opin- 
ion was  not  based  upon  an  assumption  of  the  truth  of  rumors 
or  reports  which  the  jury  did  not  believe  to  be  true,  or  of  whose 
truth  there  had  been  submitted  to  them  absolutely  no  evidence. 
It  is  therefore  clear  that  the  question  was  im])ro])er,  because  it 
allowed  an  opinion  based  upon  what  the  witness  had  heard  of 
the  accused,  and  that  the  evidence  was  inadmissible. 

Nor  was  the  evidence  otherwise  unobjectionable.  It  was  not 
competent  for  the  expert  to  give  in  evidence  an  opinion  based 
upon  what  he  knew  of  the  accused,  without  stating  what  he 
knew  of  hiin.  The  ojiinion  may  have  been  based  ujion  facts 
known  to  the  witness,  but  altogether  uid-inown  to  the  jury;  or  the 
jury.,  ha<l  they  known  such  facts,  might  have  attached  to  them 
so  little  impoi'tance  as  to  disregard  an  o])inion  known  to  be  based 
upon  them,  and  to  lose  faith  in  an  expert  who  regarded  them 
as  sullicient  foundation  for  a  positive  o])inion  as  to  such  a 
weighty  juatter.  As  was  said  in  the  case  of  Hums  v.  Barcnfichl, 
S4  Ind.  4."),  4S:  "It  is  the  clear  right  and  duty  of  the  jury  to 
judge  of  the  truth  of  the  facts  upon  whidi  the  opinion  of  the 
ex])ert  is  base  d.  If  his  o]>inion  is  based  ujxm  what  he  may  sup- 
pose he  knows  about  the  case,  upon  facts,  it  may  be,  altogether 
irrelevant  and  unknown  to  the  jury,  it  would  be  impossible  for 
them  to  ])ass  upon  the  truth  of  the  facts  upon  which  the  opinion 
may  he  based,  or  to  aj^ply  the  opinion  of  the  exjx'rt  to  the  facts. 
Xeither  court  nor  jury  can  know  the  facts  upon  which  the  opin- 
ion rests.  It  is  obvious  that,  where  the  expert  delivers  his  opin- 
ion from  what  he  sup])oses  he  knows  about  the  case,  he  must  as- 
sume and  exercise  both  the  functions  of  the  court  and  the 
jury, — he  determines  that  what  he  knows  is  both  relevant  and 
true.     The  relevancy  of  the  facts  iiuist  be  determined  by  tho 


4 


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IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


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Corporation 


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s 


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as  WBT  MAM  STRH? 

WIISTH,N.Y.  USM 
(7U)«72-4S03 


6^ 


5r 


1 

\ 

•4- 


538 


AMERICAN  CRIMINAL  REPORTS. 


court,  tlieir  truth  by  the  jury.  The  witness  cannot  pass  upon 
such  questions."  See,  also,  Louisville,  etc.  R.  Co.  v.  Falvey, 
104  Ind.  409,  3  K  E.  Rep.  389,  4  N.  E.  Rep.  908 ;  Van  Deusen 
V.  Newcomer,  40  Mich.  90,  119,  120. 

In  addition  to  these  objections,  the  qiiestion  was  "not  in 
px'oper  shape,"  and  was  certainly  ''not  a  proper  hypothetical 
question."  Where  the  question  at  issue  is  one  of  opinion  merely, 
as  that  of  sanity  or  insanity,  a  witness  who  has  "knowledge  of 
the  facts  and  their  surroundings  may  give  his  opinion  by  show- 
ing the  reason  for  it,  whether  he  be  an  expert  or  not."  Killian 
V.  Augusta  &  K.  R.  Co.,  78  Ga.  749,  3  S.  E.  Rep.  621 ;  Civil 
Code,  §  5285.  When,  however,  an  expert  is  asked  to  give  an 
opinion  on  facts  not  coming  within  his  own  knowledge,  the  ques- 
tion should  be  hypothetical.  South  Bell  Tel.  Co.  v.  Jordan,  87 
Ga.  69,  13  S.  E.  Rep.  202.  "A  scientific  expert  who  has  ob- 
served none  of  the  facts  for  himself  should  give  his  opinion  on 
a  hypothetical  case  similar  to  that  before  the  jury,  and  not  on 
the  actual  case,  as  if  he  were  a  juror  instead  of  a  witness." 
Griggs  v.  State,  59  Ga.  738;  Choice  v.  State,  supra.  In  the 
present  case  the  question  was  not  hypothetical,  and  yet  was  so 
framed  as  to  allow  the  witness  to  give  an  opinion  on  facts  un- 
kno\\'n  to  him,  but  testified  to  or  stated  by  others.  K'ot  only 
was  his  opinion  asked  directly  as  to  the  case,  but  it  was  asked 
as  to  the  controlling,  and,  indeed,  the  only,  issue  in  the  case. 
The  defense  relied  upon  was  that  of  delusional  insanity,  and  it 
was  contended  that  at  the  time  of  committing  the  homicide  the 
accused  was  acting  under  such  a  delusion,  brought  about  by 
mental  disease, — that  his  will  was  overmastered.  The  testi- 
mony of  this  expert  that  the  accused  was  not  "laboring,  at  the 
time  this  crime  was  committed,  under  any  overmastering  delu- 
sion," was,  therefore,  tantamount  to  the  expression  of  an  opinion 
that  the  accused  was  guilty  of  niurder.  "Questions  should  be 
80  framed  as  not  to  call  on  the  witness  for  a  critical  review  of 
the  testimony  given  by  the  other  witnesses,  compelling  the  ex- 
pert to  draw  inferences  or  conclusions  of  fact  from  the  testi- 
mony, or  to  pass  on  the  credibility  of  the  witnesses,  the  general 
rule  being  that  an  expert  should  not  be  asked  a  question  in  such 
a  manner  as  to  cover  the  very  question  to  be  submitted  to  the 
jury.    As  expressed  in  one  of  the  opinions,  'a  cpiestion  should 


FLANAGAN  v.  STATE. 


539 


not  be  so  framed  as  to  permit  the  witness  to  roam  through  the 
evidence  for  himself,  and  gather  the  facts  as  he  may  consider 
them  to  be  proved,  ind  then  state  bis  conchisions  concerning 
tlicm.'  "  Rogers,  Exp.  Test.,  §  26,  and  cases  cited.  And  in 
Staie  V.  Felier,  25  Iowa,  67,  74,  the  following  question  was  said 
to  be  improper,  for  the  reason  that  it  "practically  [put]  the 
medical  witness  in  the  place  of  the  jury:"  "From  the  facts  and 
circumstances  stated  by  previous  witnesses,  and  from  those  testi- 
fied to  by  still  other  witnesses,  relating  to  the  homicide,  and 
from  defendant's  conduct  on  the  trial,  is  it  your  opinion  that 
the  defendant  was  sane  or  insane  when  he  committed  the  act  ?" 
See  Rogers,  Exp.  Test.,  snpi-a. 

For  the  reasons  above  given,  we  think  the  evidence  was  mani- 
festly inadmissible,  and  that  the  court  erred  in  overruling  the 
objection  made  to  the  question.  Nor  can  the  error  be  treated  as 
one  of  little  importance.  There  was  evidence  in  the  case  which 
would  have  supported  a  finding  that  the  will  of  the  accused,  in 
consequence  of  a  delusion  brought  about  by  mental  disease,  was 
overmastered,  so  that  there  was  no  criminal  intent  as  to  the  act 
in  question,  and  that  this  act  was  connected  with  the  peculiar 
delusion  under  which  the  accused  was  laboring.  Where  such 
evidence  was  before  the  jury,  who  can  say  whether  their  finding 
to  the  contrary  was  or  was  not  brought  about  by  this  illegal  evi- 
dence ?  This  coiirt  cannot  do  so.  This  testimony  was  given  by 
the  principal  expert  witness  for  the  State,  and  went  directly 
to  the  very  subject  which  the  jury  had  to  decide,  and  we  can- 
not say  that  their  finding  may  not  have  been  used  upon  such  tes- 
timony, or  that  it  may  not  have  sen-ed  to  remove  from  their 
minds  a  reasonable  doubt  which  would  otherwise  have  existed 
tlicio  as  to  the  sanity  of  the  accused. 

2.  We  think  we  have  demonstrated  that  it  was  reversible  error 
to  allow  the  question  and  answer  of  the  expert  witness  alluded 
to  above.  That  error  was  in  itself  sufficient  to  require  the  grant 
of  a  new  trial,  but  there  were  other  errors  complained  of  which, 
taken  in  connection  with  that  heretofore  discussed,  makes  us 
the  more  certain  that  the  ends  of  justice  require  a  new  trial. 
It  was  established,  almost  beyond  dispute,  that  one  of  the  jurors 
was  incompetent  to  serve  upon  the  trial.  There  was  positive 
proof  that,  a  day  or  two  before  the  trial,  he  expressed  an  opinion 


i* 


:/i 


.1^; 

4M 


n: 


rfr' 


540 


AMERICAN  CRIMINAL  REPORTS. 


that  the  accused  was  sane  at  the  time  of  the  commission  of  the 
homicide,  and  should  be  hung.  The  juror  made  no  denial  of 
this,  except  to  swear  that  another  used  the  expression,  and  that 
he  agreed  to  it  in  an  unthinking  way.  If  we  could  consider,  in 
addition  to  the  aiKdavit  of  the  person  to  whom  the  juror  ex- 
pressed his  opinion,  the  affidavit  which  contains  a  written  ad- 
mission of  the  juror,  the  latter's  incompetence  would  be  estab- 
lished; but  the  general  trend  of  the  decisions  of  this  court  is 
that  admissions  of  a  juror,  made  after  the  trial,  cannot  be  used 
to  impeach  his  verdict,  although  in  the  case  of  Martin  v.  Sfatr, 
25  Ga.  494,  a  new  trial  was  granted  solely  upon  the  admissions 
of  a  juror. 

Furthermore,  it  appears  from  the  record  that  on  the  trial  ^Fr. 
Rountree  was  the  leading  counsel  for  the  defense;  that,  after 
two  spc^eches  had  been  made  on  Wednesday,  ^Mr.  Rountree  was 
taken  ill  v/ith  a  severe  attack  of  cholei'a  morbus,  and  the  court 
adjourned  from  time  to  time  until  Friday  afternoon.  At  that 
time  ^Ir.  Rountree  appeared,  having  previously  filed  an  affidavit 
by  his  physician  that  he  was  j^hysically  unable  to  conduct  the 
case,  and  stated  in  his  place  in  court  that  he  had  l)een  sick  since 
Wednesdav  with  this  attack  of  cholera  morbus,  that  he  was  un- 
able  to  proceed  with  the  ai-gimient,  and  that  he,  having  tasted 
no  food  in  fifty-six  hours,  could  not  in  his  then  condition  do  his 
client  justice.  The  refusal,  under  these  circumstances,  to  grant 
a  mistrial  is  assigned  as  error.  The  trial  judge,  in  apjiroving 
this  ground  of  the  motion  for  new  trial,  says,  in  substance,  that 
in  a  private  conversation  he  had  announced  to  ^Ir.  Rountree 
a  willingness  to  take  another  recess;  that  Mr.  Rountree  did  not 
so  understand  the  court ;  that  the  announcement  was  not  made 
from  the  bench ;  that  in  his  opinion  ^Ir.  Rountree  was  able  to 
make  his  argument  to  the  jury;  and  that  he  ordered  the  trial  to 
l>roceed.  The  motion  for  mistrial  was  made  in  open  court,  and 
in  open  court  the  judge  overruled  it.  What  was  said  in  private 
conversation,  off  of  the  bench,  was  not  binding  u])on  the  judge 
or  counsel,  for  it  was  not  such  a  ruling  as  could  be  excepted  to 
and  assijiiied  as  error  in  this  court.  Grant  v.  State,  97  Ga. 
789,  25  S.  E.  Rep.  399.  There  was  an  affidavit  of  :Mr.  Roun- 
troc's  condition,  and  his  statement  in  his  place  that  he  was  un- 
able to  make  the  concluding  argument  for  his  client.    The  judge, 


|1| 


FLANAGAN  v.  STATE. 


541 


it  seems,  thought  that  he  know  the  comlition  of  Mr.  Rountree 
better  than  did  the  latter  or  his  physician.  AMien  an  attorney 
makes  a  statement  in  his  place,  it  is  considered  as  binding  as 
thongh  he  were  under  oath.  This  attorney,  therefore,  stated  in 
a  manner  equivalent  to  an  oath  that  he  was  too  ill,  on  account 
of  a  sudden  attack  of  cholera  morbus,  and  the  consequent  weak- 
ness and  debility,  to  proceed  with  the  trial.  It  does  seem  to  us 
that  an  attorney  who  had  been  thus  alHicted,  who  had  been  Avith- 
out  food  from  Wednesday  night  until  Friday  afternoon  at  four 
o'clock,  was  physically  incompetent  to  discharge  properly  the 
duties  of  his  otKce  on  the  trial  of  a  murder  case.  The  consti- 
tution and  laws  of  this  State  guaranty  to  every  person  charged 
with  an  offense  against  its  laws  a  fair  and  impartial  trial  and 
the  benefit  of  counsel.  Whether  or  not  the  accused  was  guilty 
of  murder,  whether  or  not  he  had  capacity  to  form  a  criminal 
intent,  his  guilt  nmst  be  ascertained  in  a  fair  and  lawful  man- 
ner. As  was  said  by  Warner,  C.  J.,  in  the  case  of  Moncrief  v. 
Slide,  59  Ga.  470,  472,  "The  defendant  may  or  may  not  be 
guilty  of  the  offense  with  which  he  is  charged;  but,  if  he  is 
guilty,  that  is  no  reason  why  the  court  should  be  less  carefu^  to 
see  that  he  is  tried  and  convicted  in  accordance  with  the  laws 
of  the  State,  inasnnich  as  the  penalty  is  the  loss  of  life."  Be- 
lieving that  this  has  not  been  done  in  the  present  case,  we  can- 
not, as  judicial  officers,  affirm  the  conviction,  but  must,  in  the 
performance  of  our  duty,  revei*se  the  judgment  of  the  trial 
court,  and  direct  that  the  accused  be  again  put  upon  trial. 

3.  The  motion  for  new  trial  contained  many  grounds  with 
Avhich  we  do  not  here  deal.  Some  of  these  the  trial  judge  did 
not  verify  as  made,  but  qualified  and  explained  in  approving 
them.  As  they  now  stand,  it  is  not  necessary  to  mention  them 
here.  Xone  of  them  will  be  at  all  likely  to  arise  upon  another 
trial  of  this  case,  and  a  decision  of  them  would  not  be  help- 
ful. Judgment  reversed.  All  the  justices  concurring,  except ' 
Lewis,  J.,  disqualified. 

Notes  (by  H.  C.  G.).— (By  referring  to  pages  601-606,  10  American 
Criminal  Reports,  the  reader  will  find  quite  an  extensive  collection  of 
citations  and  authorities  on  "Insanity.") 

Burden  of  proof  on  insanity  issues — Presumptions  of  sanity  and  in- 
sanity— Their  application  to  general  and  temporary  insanity — Utile  as 


<!, 


11 


5i2 


AMERICAN  CRIMINAL  REPORTS. 


^    M 


;!-5.      I'l 


to  "right  and  wrong,"  etc. — In  a  short  opinion,  while  dissecting  er- 
roneous Instructions,  the  Mississippi  court  canvassed  these  doctrines, 
which,  for  the  sake  of  perspicacity,  we  formulate  as  propositions. 
Ford  V.  State,  73  Miss.  734,  19  S.  W.  Rep.  665  (1896). 

1.  Every  man  Is  presumed  to  be  sane  until  the  contrary  is  shown. 

2.  The  burden  of  proof  never  shifts  In  a  criminal  case,  but  Is  al- 
ways on  the  State. 

3.  This  presumption  of  sanity  In  general  supports  this  burden  of 
proof,  and  stands  in  place  of,  and  dispenses  with,  actual  proof  of  san- 
ity by  the  State 

4.  But  when  evidence  is  Introduced  tending  to  show  Insanity  In  the 
defendant,  or  to  raise  a  reasonable  doubt  as  to  his  sanity  at  the  time 
of  the  commission  of  the  act,  then  this  general  presumption  is  neu- 
tralized and  negatived,  and  the  burden  that  at  all  times  rests  upon 
the  State  requires  it  to  now  establish  by  evidence,  beyond  reasonable 
doubt,  as  an  essential  element  of  Its  case,  that  the  defendant  was  sane 
at  the  time  of  the  act  charged  against  him. 

5.  Where  the  evidence  shows  merely  temporary  or  recurrent  in- 
sanity (such  as  paralysis,  epilepsy,  etc.),  without  raising  a  reasonable 
doubt  as  to  Its  existence  at  the  time  of  the  act,  then  the  State  may 
rely  upon  the  general  presumption  of  sanity,  and  will  not  be  obliged 
to  prove  a  lucid  Interval  In  order  to  fix  responsibility  upon  the  de- 
fendant. 

6.  But  where  general  or  habitual  Insanity  has  been  shown,  suffi- 
cient to  raise  a  reasonable  doubt,  then  the  presumption  arises  that 
such  an  insane  condition  continues  to  exist,  and  the  burden  is  then 
upon  the  State  to  negative  this  presumption,  by  showing  a  lucid  in- 
terval at  the  time  of  the  commission  of  the  act. 

7.  The  court  also  reaffirms  the  principle  that  if  the  disease  goes  to 
the  extent  of  breaking  down  the  distinction  between  a  knowledge  of 
right  and  wrong.  It  is  Immaterial  whetk  the  sufferer  be  totally  or 
partially  Insane  on  other  subjects;  and  also, 

8.  That  a  reasonable  doubt  arising  out  of  the  whole  evidence  as  to 
the  defendant's  sanity  entitles  him  to  an  acquittal. 

The  doctrine  in  Nebraska,  on  the  burden  of  proof  In  insanity  cases, 
and  the  capacity  to  distinguish  between  right  and  wrong,  were  dis- 
cussed in  Knight  v.  State,  68  Neb.  225,  78  N.  W.  Rep.  508  (1899),  as 
follows: 

"In  relation  to  the  defen&e  of  Insanity,  upon  which  the  prisoner  re- 
lied, the  court  said  to  the  jury,  in  the  twelfth  instruction:  'You  are 
Instructed  that  the  law  presumes  that  every  person  Is  sane,  and  it  is 
not  necessary  for  the  State  to  Introduce  evidence  of  sanity  In  the  first 
Instance.  When,  however,  any  evidence  has  been  introduced  tending 
to  prove  Insanity  of  an  accused,  the  burden  is  then  upon  the  State  to 
establish  the  fact  of  the  accused's  sanity,  the  same  as  any  other  ma- 
terial fact  to  be  established  by  the  State  to  warrant  a  conviction.  If 
the  testimony  introduced  in  this  case  tending  to  prove  that  the  defend- 
ant was  Insane  at  the  time  of  the  alleged  burning  described  In  the  in- 
formation raises  In  your  mind  a  reasonable  doubt  of  his  sanity  at  the 
time  of  the  alleged  burning,  then  your  verdict  should  be  acquittal.' 


FLANAGAN   a  STATE. 


643 


It  Is  contended  that  this  instruction  gave  the  jury  to  understand  that 
the  burden  of  establishing  his  insanity  rested  upon  the  defendant  up 
to  a  certain  point  in  the  trial,  and  was  then  shifted  from  him  to  the 
State.  Snider  v.  8tate,  56  Neb.  309,  76  N.  W.  Rep.  574,  is  cited  as  au- 
thority for  this  contention.  Whatever  may  be  said  of  the  meaning  of 
the  instruction  considered  in  the  Snider  Case,  there  can  be  no  room 
to  doubt  that  the  court,  in  the  instruction  now  under  consideration, 
stated  the  correct  doctrine  in  unmistakable  terms.  In  this  case  the 
jury  were  informed  that  the  law  presumes  sanity,  but  that,  when  the 
defendant  produced  evidence  tending  to  prove  insanity,  the  State  was 
charged  with  a  burden  which  did  not  previously  rest  upon  it.  The 
court  did  not  say  or  imply  that  the  burden  of  proving  insanity  was 
ever  on  the  accused,  or  that  there  was  a  shifting  of  the  burden  from 
him  to  the  State.  The  substance  of  what  the  court  did  say  was  that, 
when  the  legal  presumption  of  sanity  encountered  opposing  evidence, 
the  law  then,  for  the  first  time,  imposed  on  the  State  the  onus  of  show- 
ing the  prisoner's  sanity  by  the  proper  measure  of  proof. 

"The  thirteenth  instruction  was  also  excepted  to,  and  its  correctness 
Is  now  vigorously  challenged.  It  is  as  follows:  'You  are  instructed 
that  insanity  which  renders  a  person  irresponsible  for  an  act  is  such  a 
diseasea  rendition  of  the  mind  as  renders  the  person  incapable  of 
understanding  the  nature  of  such  act,  and  incapable  of  distinguishing 
between  right  and  wrong  with  respect  to  such  act.  So  in  this  case, 
if  the  evidence  introduced  tending  to  show  that  the  defendant  was  at 
the  time  of  the  Are  incapable  of  understanding  and  knowing  what  he 
was  doing,  and  that  at  such  time  he  could  not  distinguish  between 
right  and  wrong,  raises  in  your  mind  a  reasonable  doubt  of  the  de- 
fendant's sanity  at  the  time  of  such  fire,  then  you  should  acquit  him.' 
By  this  instruction  the  Jury  were  plainly  told  that  they  might  acquit 
the  defendant,  on  the  ground  of  insanity,  only  in  case  (1)  he  was  at 
the  time  of  the  fire  incapable  of  understanding  the  nature  of  his  act, 
and  (2)  that  he  was  at  the  same  time  incapable  of  distinguishing  be- 
tween right  and  wrong  with  respect  to  that  act.  Such  is  not  the  law, 
and  the  giving  of  this  instruction  was  an  error  fatal  to  the  conviction. 
Ordinarily,  insane  persons  comprehend  the  nature  of  their  acts.  When 
they  take  life  or  destroy  property,  they  usually  know  what  they  are 
doing,  and  often  choose  means  singularly  fitted  to  accomplish  the  end 
in  view.  The  jury  in  this  case  may  have  believed  that  the  defendant 
applied  a  lighted  match  to  the  property  in  question,  understanding  well 
that  combustion  would  fellow,  and  that  the  store  building  a.\d  its  con- 
tents would  be  reduced  to  ashes;  and  they  may  have  refused,  for  that 
reason,  to  acquit  him,  although  reasonably  doubting  his  capacity  to  dis- 
tinguish between  right  and  wrong  with  respect  to  the  act.  In  the  an- 
swer of  the  English  judges  to  the  questions  propounded  by  the  House 
of  Lords  as  a  result  of  the  acquittal  of  McNaughton  for  the  killing  of 
Drummond  (McNaughton's  Case,  10  CI.  &  Fin.  (Eng.)  200).  Chief  Jus- 
tice T'.adal,  speaking  for  himself  and  his  associates,  among  other 
things,  said  that  there  is  no  criminal  responsibility  wliere,  'at  the  time 
of  the  committing  of  the  act,  the  party  accused  was  laboring  under 
such  a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the 


Bh 


m :  •  \ 


I  i 


I  >3I  i! 

■.ill 

'If 

^1 : 


mf 

■ 

i 

!| 

;; 

644 


AMERICAN  CRIMINAL  REPORTS. 


nature  and  quality  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that 
he  did  not  Imow  he  was  wrong.'  The  rule  thus  announced  has  been 
since  1843  the  unquestioned  law  in  England;  and  it  is  now  the  gen- 
erally accepted  doctrine  of  the  American  courts.  It  was  recognized  by 
this  court  in  Wright  v.  People,  4  Neb.  407,  and  has  been  since  fre- 
quently approved.  Haine  v.  State,  11  Neb.  537,  10  N.  W.  Rep.  452;  Hart 
V.  State,  14  Neb.  572,  16  N.  W.  Rep.  905;  Thurman  v.  State,  32  Neb.  224. 
49  N.  W.  Rep.  338.  In  Hawe  v.  State,  it  was  said:  'And,  where  an  in- 
dividual lacks  the  mental  capacity  to  distinguish  right  from  wrong  in 
reference  to  the  particular  act  complained  of,  the  law  will  not  hold 
him  responsible." 

The  case  of  Franres  Green,  64  Ark.  523,  43  S.  W.  Rep.  73  (Jan.  8, 
1898),  possessed  an  element  of  novelty,  in  that  she  was  an  eighteen- 
year-old  colored  girl — a  teacher  in  the  Sunday  school — who  was  con- 
victed of  murder,  the  defense  being  insanity.  She  was  engaged  to  be 
married,  and  was  ericeinte  by  her  fiancee.  On  learning  that  he  was 
about  to  marry  another  woman,  she  did  not  eat  or  sleep  for  three 
days,  walked  almost  continually,  and  said  that  she  was  worried  to 
death.  Then  deceased,  with  the  woman  he  had  just  married,  walked 
past  her  home,  and  she,  taking  up  a  gun,  ran  after  and  shot  him. 
After  this,  her  mind  seemed  to  be  relieved;  she  sang  and  laughed  and 
talked  unconcernedly  about  the  affair,  and  seemed  to  think  that  she 
had  done  right.     Several  questions  arose. 

(1)  The  court  excluded  the  evidence  of  the  sheriff  in  her  be'ialf, 
as  to  her  demeanor  in  jail.  This  was  error,  because,  while  in  general 
the  subsequent  conduct  of  a  defendant  is  not  admissible,  yet,  in  in- 
sanity cases,  such  evidence  is  admissible  when  it  goes  to  show  a  con- 
tinuing state  of  mental  disorder. 

(2)  The  court  excluded  evidence  of  inherited  Insanity — aberration  of 
Eiind  of  mother,  grandmother,  grand-aunt,  etc.    This  was  error. 

(3)  The  defense  propounded  to  an  expert  a  hypothetical  question 
embracing  the  facts  of  the  case,  and  the  demeanor  and  actions  of  the 
defendant,  and  also  the  condition  that  if  her  ancestors  showed  a  taint 
of  insanity,  whether  or  not,  in  his  opinion,  the  shooting  was  an  act 
of  insanity.  The  witness  was  not  permitted  to  answer, — and  this  was 
error.  (Cited  1  Whart.  &  S.  Med.  Juris.,  sec.  376;  2  BIsh.  Cr.  Proc. 
(3d  ed.),  sec.  685;  54  Ark.  588;  117  Mass.  143,  et  ah) 

(4)  A  physician  of  five  years'  practice,  who  "had  studied  mental 
diseases  so  far  as  ordinary  cases  were  concerned,"  etc.,  but  never  had 
any  experience  in  their  treatment,  was  excluaed  as  not  being  an  ex- 
pert; held,  that  his  qualifications  were  doubtful. 

(5)  Another  physician  of  twenty-one  years'  practice  who  "knew  some- 
thing about  insanity,"  had  studied  nervous  diseases,  and  treated  them  to 
some  extent,  "as  every  physician  of  twenty  years'  practice  would  have 
to  do,"  who  was  excluded,  was  held  to  be  competent.  (Among  the 
authorities  cited  were  Rogers,  Ex.  Test.  (2d  ed.)  45;  53  Mich.  63;  48 
N.  H.  304;  50  N.  H.  452;  36  Kan.  1;  38  Kan.  550;  62  Ark.  74.) 

On  the  question  of  "knowing  right  from  wrong"  the  court  admitted 
that  it  was  true  that  a  person  may  have  such  knowledge  and  yet  not 
be  responsible  for  his  act,  but  that  the  following  conditions  must  also 


now  it,  that 
)d  has  been 
)w  the  gen- 
cognized  by 
since  fre- 
452;  Hart 
32  Neb.  224, 
'here  an  in- 
n  wrong  in 
11  not  hold 

73  (Jan.  8, 
n  eighteen- 
o  was  con- 
raged  to  be 
tiat  he  was 
>  for  three 
worried  to 
ed,  walked 
shot  him. 
lughed  and 
k  that  she 

her  beialf, 
in  general 
yet,  in  in- 

how  a  con- 

«rratlon  of 
rror. 

il  question 
Ions  of  the 
I'ed  a  taint 
vas  an  act 
d  this  was 
.  Cr.  Proc. 

ed  mental 
never  had 
Ing  an  ex- 
mew  some- 
ed  them  to 
rould  have 
.mong  the 
ch.  63;  48 
) 

:  admitted 
id  yet  not 
must  also 


y 


PEOPLE  V.  SHELDON. 


54: 


exist,  viz.:  Such  person  must  have  been  so  afflicted  with  a  disease  of 
the  mind  as  thereby  to  have  so  far  lost  the  power  to  choose  between 
the  right  and  the  wrong,  as  that  his  free  agency  was  destroyed, — and 
at  the  same  time  the  alleged  crime  must  have  been  so  connected  with 
such  mental  disease,  in  relation  of  cause  and  effect,  as  to  have  been 
the  product  of  it  solely, — without  the  aid  of  any  other  cause.  Re- 
versed. 


PrOPLE    V.    SlIKLDON. 

156  N.  Y.  268—50  N.  E.  Rep.  840. 

Decided  June  7,  1898. 

Jury,  CoEnciON  of:  Homicide  trial — Sfetting  verdict  aside. 

1.  No  Juror  should  be  induced  to  agree  to  a  verdict  from  fear  of  cen- 

sure upon,  his  intelligence  or  integrity.  Jurors  should  not  be 
subjected  to  privations  and  hardships  that  will  test  their  physi- 
cal strength  and  endurance,  and  that  might  induce  them  to 
acquiesce  in  a  verdict  from  physical  exhaustion  and  a  desire  to 
avoid  further  punishment. 

2.  It  is  not  the  prerogative  of  the  judge  by  commands,  insinuations 

and  profuse  and  repeated  argumentation  on  the  necessities  of 
justice,  public  policy,  economy,  pride  of  opinion,  etc.,  to  seek  to 
overcome  the  opinions  and  judgment  of  jurors  for  the  purpose 
of  bringing  about  a  verdict. 

3.  The  jury  was  out  eighty-four  hours  without  beds  or  cots,  forty 

hours  of  that  time  confined  in  a  small  room.  Several  tinies  they 
informed  the  court  that  they  could  not  agree,  but  were  each  time 
sent  back  with  the  admonition  that  they  could  agree  and  that 
they  must  agree,  if  possible;  the  court  reminding  them  that  the 
trial  had  lasted  nearly  seven  weeks,  and  was  expensive,  and  in- 
sisting that  they  completely  recanvass  the  case  from  the  begin- 
ning, telling  them  that  he  could  not  hear  of  a  disagreement, — 
that  that  would  almost  amount  to  a  confession  of  incompetency, 
etc.  Held,  that  this  was  a  virtual  coercion  of  the  jury,  and  that 
the  verdict  should  be  set  aside. 

Appeal  from  a  conviction  of  murder  in  the  first  degree,  of  the 
Supreme  Court,  in  Cayuga  county. 

The  defendant,  Frank  L.  Sheldon,  was,  on  the  9th  day  of  Oc- 
tober, 1896,  indicted  by  the  grand  jury  of  Cayuga  county  for 
the  crime  of  murder  in  the  first  degree,  charged  with  the  killing 
Vol.  XI -35 


;nn> 


'Ht 


I  ( 


m 


rift'  J    ?  i 


i  .' : 


u 


Si. 


'0 


11. 


I^'l;. 


!;i!i«iii 


•«rr  ':i 


6iQ 


AMERICAN  CRIMINAL  REPORTS. 


of  his  wife,  Eva  M.  Sheldon.  On  the  12th  day  of  October, 
181)G,  he  was  arraigned  on  said  indictment,  and  pleaded  not 
guilty.  On  the  25th  day  of  January,  1897,  at  a  trial  term  of 
the  Supreme  Court  held  in  and  for  the  said  county,  the  indict- 
ment was  moved  for  trial.  The  trial  lasted  for  seven  weeks, 
ending  on  the  15th  day  of  March. 

A  great  number  of  witnesses  (119  in  all)  were  examined. 
The  evidence  against  the  accused  was  largely  circumstantial. 
The  defense  insisted  that  the  deceased  came  to  her  death  by 
suicide,  and  considerable  evidence  pointing  in  that  direction 
was  given  during  the  progress  of  the  trial.  It  was  generally 
supposed  at  first  that  the  deceased  had  taken  her  own  life,  as, 
when  the  body  was  discovered  in  a  closet  of  the  house  occupied 
by  her  and  the  prisoner,  a  pistol  was  lying  beside  it,  and  not 
for  some  time  after  the  burial  was  the  defendant  accused  of 
the  crime  of  which  he  was  subsequently  convicted.  In  fact 
there  were  two  disintennents  of  thi3  body,  considerable  time 
elapsing  between  them,  before  the  idea  of  murder  became  i^rev- 
alent  and  the  prisoner  charged  with  the  crime. 

On  March  11th  the  case  was  finally  submitted  to  the  jury, 
who  immediately  retired  to  deliberate  upon  their  verdict.  Three 
times,  at  their  request,  the  jury  were  broiight  into  court  for  in- 
structions. After  being  out  all  of  one  night  and  the  greater 
part  of  one  day,  they  announced  that  they  had  not  agreed  upon 
a  verdict.  The  judge  ordered  the  jury  to  be  sent  out  again 
for  further  deliberation.  They  returned  into  court  the  second 
time,  after  having  been  out  two  nights,  all  of  one  day,  and  part 
of  the  second  day,  and  reported,  in  a  writing  signed  by  the  fore- 
man, that  they  were  unable  to  agree  upon  a  verdict,  and  that  it 
was  impossible  for  them  to  do  so.  The  jury  were  again  sent 
back  to  the  jury  room  by  the  court,  after  receiving  certain  in- 
structions, and  remained  there  until  3:20  o'clock  of  that  day 
(it  being  Saturday),  when  they  were  sent  for  by  the  court,  who, 
after  giving  them  further  instructions  and  directing  certain  pro- 
visions to  be  made  for  their  convenience  and  comfort,  ordered 
them  to  be  taken  back  for  further  deliberation.  They  remained 
out,  from  that  time,  two  nights  and  one  day,  until  Monday 
morning,  when  they  returned  into  court,  and  announced  a  ver- 
dict of  guilty  as  charged  in  the  indictment.    The  jury  were  out 


M^ 


>v 


PEOPLE  r.  SHELDON. 


Si- 


October, 
3aded  not 
1  terax  of 
lie  inJict- 
en  weeks, 

xamined. 

nstantial. 

death  bv 

direction 
generally 
ti  life,  as, 

occupied 
,  and  not 
ecu  sod  of 
In  fact 
able  time 
Eime  i^rev- 

the  jury, 
it.    Three 
irt  for  in- 
le  greater 
:eed  upon 
3ut  again 
ho  second 
and  part 
the  fore- 
id  that  it 
gain  sent 
3rtain  in- 
that  day 
urt,  who, 
•tain  pro- 
,  ordered 
remained 
Monday 
S(\  a  ver- 
were  out 


Altogether  four  nights  and  about  four  days.  During  all  this 
time  they  had  been  provided  with  no  sleeping  accommodations 
whatever,  confined  for  two  nights  and  almost  two  days  in  tlie 
narrow  quarters  of  a  jury  room,  and  the  rest  of  the  time  in  the 
court  room,  which  had  been  set  aside  for  that  purpose.  What 
followed  each  time,  as  the  jury  returned  into  court,  will  fully 
appear  by  the  following  synopsis  taken  from  the  record. 

Jury  went  out  Thursday,  March  11,  1897,  at  8:30  p.  m. 
11:30  a.  m.,  Friday,  jury  came  into  court,  and  asked  two  qnos- 
tiond  as  to  the  evidence,  which  were  answered  by  the  court  from 
the  minutes  of  stenographer,  folios  11,202  to  11,240,  without 
objection.  3 :25  p.  m.  jury  again  came  into  court  and  announced 
they  had  not  agreed  upon  a  verdict.  By  the  court:  "Well, 
gentlemen,  you  must  make  an  effort  to  agree.  This  case  has  in- 
volved immense  labor.  A  great  deal  of  time,  as  you  know,  has 
boon  given  to  it,  and,  from  all  the  evidence  that  has  been  pro- 
duced, it  would  seem  that  the  case  is  susceptible  of  a  conclusion. 
The  only  way  of  reaching  a  conclusion  is  through  the  verdict  of 
the  jury.  There  is  no  reason  why  these  twelve  men  are  not  as 
capable  of  imderstanding  this  case  and  coming  to  a  conclusion 
as  any  other  twelve  that  could  be  gotten  together.  It  is  a  case 
■of  too  much  importance,  that  has  entailed  too  much  labor,  to 
permit  a  jury  to  separate  without  the  utmost  effort  to  agree. 
Differences  that  exist  amongst  you  as  to  the  evidence  must  be 
further  investigated.  Any  questions  of  law  the  court  will  be 
glad  to  explain  to  you.  It  is  for  the  interests  of  all  concerned 
and  public  justice  that  there  should  be  a  decision  of  this  case 
so  that  the  questions  in  it  shall  be  put  at  rest.  /  cannot  hear  of 
a  disagreement  of  this  jury.  Yj''  ■  must  retire,  gentlemen."  The 
jury  again  retired  at  3 :30  p.  m.,  and  at  5 :30  p.  r'  sent  a  com- 
munication to  the  court  asking  for  further  information.  In- 
structions were  given,  and  questions  of  jury  answered  by  read- 
ing from  stenographer's  minutes,  folios  11,245  to  11,281,  with- 
out objection.  Jury  then  retired.  Saturday  morning,  March  13, 
1897,  the  jury  came  into  court  by  the  order  of  Justice  Dunwell, 
at  12 :45  p.  m.,  and  presented  a  written  communication  to  the 
court,  Mr.  Drummond  having  previously  waived  his  presence 
in  court,  which  read  as  follows:  "Jvidge  Dunwell — Dear  Sir: 
The  probability  or  even  possibility  of  this  jury  ever  agreeing  is 


M' 


5'    'ii  ; 
.  f  itlr      t  f       >j 

li  ■ 


;i'! 


\- 


h  i 


,'l  i 


?^' 


II 


5^S 


AMERICAN  CRIMINAL  REPORTa 


impossible  in  my  opinion.  George  J.  lloklon,  Foreman."  By 
the  court:  "The  order  will  be  tliat  you  be  conducted  to  youv 
hotel,  and  that  you  bo  brought  back  for  further  deliberation. 
The  counsel  for  the  defendant  is  not  here,  end  later  1  will  have 
something  further  to  say  to  you  with  reference  to  your  present 
communication.  1  have  made  my  own  arrangements  so  as  to  bo 
back  at  your  call  both  for  to-day  and  for  some  time  in  the  future, 
so  that  the  case  may  bo  fully  diap(»sed  of  if  there  is  a  ijosajbility 
of  it,  and  I  will  have  something  further  to  say  on  this  subject 
later  in  the  day,  when  the  defendant's  counsel  can  be  present." 
At  3:20  p.  m.  the  jury  again  returned  to  the  court,  and  were 
addressed  by  the  court  as  follows:  "Gentlemen,  I  have  been 
giving  consideration  to  the  note  that  you  ad<lressed  to  the  court 
this  morning,  in  which  you  stated  your  doubts  as  to  your  ability 
to  agree  upon  a  verdict  in  this  case.  I  very  nuich  regret  this 
supposition  of  yours,  but  I  by  no  means  despair.  This  case  has 
involved  immense  labor,  enormous  expense  has  been  entailed, 
evidence  has  been  gathered  and  brought  before  you  from  every 
direction,  evidence  bearing  directly  upon  the  issues  in  this  case, 
and  some  of  it  remotely  upon  the  issues.  All,  everything  that 
could  be  suggested,  that  might  throw  light  upon  the  question 
submitted  to  you,  has  been  brought  before  you  and  is  in  your 
possession.  Now,  the  truth  of  this  case  lies  within  the  compass 
of  that  evidence.  Mrs.  Sheldon  died  by  violence.  How  that 
came  about  and  whether  the  defendant  is  guilty  or  innocent  is 
something  that  must  be  told  by  the  evidence  that  has  boen  pre- 
sented to  you.  /  don't  know  that  you  fully  appreciate  the  <jrar- 
ity  and  importance  to  this  community  and  to  the  Stale  that  a  de- 
cision shall  be  reached  in  this  matter,  and  that  this  important 
question  shall  be  settled  as  to  whether  the  defendant  is  guilty  or 
innocent.  This  case  has  occupied  nearly  seven  weeks,  and  to 
say  now,  at  the  end  of  all  that  time,  at  the  end  of  all  this  labor 
and  expense,  that  the  question  is  no  better  off  than  it  was  when 
started,  is  almost  to  confess  incompetency  in  this  matter.  Of 
course,  I  have  no  means  of  knowing,  and  I  don't  desire  to  know, 
unless  it  is  something  that  you  desire  to  bring  before  the  court, 
the  reasons  why  this  state  of  affairs  exists  in  your  body.  I  hope 
it  is  nothing  like  pride  of  opinion.  I  hope  it  is  nothing  like, 
having  once  taken  a  position  in  this  case,  that,  therefore,  you 


PEOPLE  V.  SHELDON. 


640 


nnn."  By 
I'd  to  yom- 
'liboratioii. 
I  will  have 
ur  prt'sont 
so  as  to  bo 
the  fnturt', 
possibility 
is  subject 

0  present." 
and  were 

luive  been 
[)  the  crniit 
our  ability 
regret  this 
is  ease  has 

1  entailed, 
'roni  every 
1  this  case, 
thing  that 
e  question 
is  in  your 
10  compass 
How  that 
nnocent  is 

1  been  prc- 
'i  the  (jrav- 
that  a  de- 
iniportant 
i  guilty  or 
vs,  and  to 
this  labor 
was  when 
lifer.     Of 
;  to  know, 
the  court, 
'.    I  hope 
iiing  like, 
fore,  you 


must  say  it  is  unalterable;  that  it  is  not  susceptible  of  ehnngo  by 
argument,  and  by  a  review  of  the  evidence  in  the  case, — beeauso 
such  considerations  as  those  would  be  most  unworthy  to  divide 
a  jury  upon  so  imiK)rtant  a  question.  Kngaged  as  I  am  in  the 
administration  of,  or  attempt  to  administer,  public  justice  in 
this  district,  I  have  laid  aside  my  other  ent^agements  so  that  this 
ease  can  be  attended  to,  because  I  approciiite  the  imporrance  of 
it,  and  I  would  like  to  enforce  upon  you  an  appreciation  of  the 
importance  of  settling  this  question.  It  has  (jot  to  he  set  lied. 
When  an  aflfair  of  this  kind  has  occurred  it  hns  got  to  be  tried, 
it  has  got  to  be  investigated,  and  the  inten  its  of  public  justice 
will  not  stop  short  of  going  to  the  very  bottom  of  it,  and  dis- 
covering what  the  truth  is,  regardless  of  time  and  expense.  I 
do  not  say  these  things,  gentlemen,  in  a  fault-findi;i;7  way.  I 
desire  to  say  them  to  you  with  the  idea  of  urging  upon  you  and 
of  bringing  to  your  minds  an  ai)preciation  of  the  great  impor- 
tance of  this  matter,  and  of  settling  it  and  deciding  it.  I  ap- 
preciate somewhat  your  position.  I  don't  say  this  with  any  un- 
kindness.  1  know  that  your  labors  in  this  matter  have  been 
tedious,  and  that  they  arc  wearisome,  and  I  appreciate  the 
length  of  time  that  you  have  been  out,  and  you  must  not  think 
that  I  am  forgetful  of  these  things;  but  there  must  bo  a  supremo 
effort  made  on  your  part  to  harmonize  differences,  and,  there- 
fore, I  am  (joing  to  insist  that  you  hefjin  at  the  very  outset  of 
the  case,  from  the  very  beginning,  and  go  over  it  again,  looking 
at  it  from  every  possible  point  of  view,  so  that  there  shall  not  be 
a  failure  of  justice  in  this  case.  I  know  that  your  jury  room  is 
a  narrow  place,  and  that  you  are  a  good  deal  confined  there,  and 
for  that  reason  I  have  arranged  with  the  sheriff  that  you  shall 
occupy  this  room  from  now  on  to  the  completion  of  your  labors. 
Of  course,  I  don't  know  how  long  it  will  take,  and,  therefore,  I 
have  arranged  with  the  sheriff  that  you  shall  have  more  comfort- 
able quarters,  so  that  this  room  will  be  cleared  shortly  after  you 
have  retired,  and  the  officers  will  remain  downstairs  in  the 
sheriff's  office,  and  you  will  be  given  this  room,  giving  you  a 
better  opportunity  to  circulate  about,  and  making  your  position 
as  comfortable  as  possible  under  the  circumstances.' 

*'At  7:35  p.  m.  the  court  ordered  that  the  jury  be  taken  to 
supper  and  returned  to  their  room  for  further  deliberation. 


«;i;vl.(;; 


m> 


m 


\.'''  ■ft  ■*.' 


Ir.r 


>k:m\ 


li 


II 


'■^' 


'j.-i 


'     "vfc 

ii 


=!! 


u 


ij^ 


p  1 


i 


550 


AMERICAN  CRIMINAL  REPORTS. 


.  .  .  The  court  also  entered  an  order  that  the  jury  should  bo 
conducted  to  their  meals  at  the  usual  hours,  to-morrow,  Sunday, 
and  including  Monday  morning.  Defondant'o  counsel  objected 
and  excepted  to  the  remarks  and  instructions  given  to  the  jury, 
at  3 :20  p.  ra.,  on  March  13,  1897,  and  to  each  and  every  part 
thereof.  Defendant  particularly  and  specifically  objects  and 
excepts  to  folios  11,305  to  and  including  folio  11,317,  and 
also  asks  that  the  written  communication  of  the  jury  to  the 
court  be  made  a  p:.ft  of  the  record.  ^Monday  morning,  Mai'ch 
15,  1897,  at  7 :30,  the  jury  sent  word  to  Justice  Duuwell  that 
they  were  ready  to  report,  and  they  were  accordingly  brought 
into  court  at  8:30  a.  m.,  the  roll  called  by  the  clerk,  and  the 
question  put:  'Gentlemen  of  the  jury,  have  you  agreed  upon 
a  verdict  V  By  Foreman  Ilolden :  'We  have.  Wo  find  the 
prisoner  guilty  as  charged  in  the  indictment.'  By  the  court: 
'You  say  you  find  the  prisoner  guilty,  as  charged  in  the  indict- 
ment, of  murder  in  the  first  degree?'  By  Foreman  Ilolden: 
'We  do.'  The  jury  Avere  thereupon  polled,  and  e".ch  answered, 
'Guilty.'  .  .  .  Defendant's  coimsel  moved  arrest  of  judg- 
ment under  section  487  of  the  Code  of  Criminal  Procedure,  and 
also  on  each  and  every  groxmd,  as  provided  by  the  Code  of  Crim- 
inal Procedure  in  reference  to  an  arrest  of  judgment.  Defoiul- 
ant's  coimsel  also  moved  for  a  new  trial  in  the  case,  \indor  sec- 
tion 485  of  the  Code  of  Criminal  Procedure,  and  upon  each  and 
every  ground  stated  in  section  485,  and  especially  subdivisions 
4,  5,  and  G  of  that  section.  Both  motions  were  denied,  and  ex- 
ceptions taken  by  defendant." 

liohert  L.  Drummond,  for  the  appellant. 
George  W.  NelUs,  for  the  People. 

Parker,  C.  J.  The  question  before  this  court  is  not  how  long 
may  a  court  keep  a  jury  togedier,  for  that  is  a  matter  resting  in 
the  sound  discretion  of  the  trial  court.  Nor  is  the  question 
whether  a  jury  should  be  compelled  to  stay  together  more  than 
one  night  Avithout  a  bed,  or  at  least  a  cot,  to  lie  on,  for  that,  too, 
is  a  matter  resting  in  discretion.  It  seems  a  wiser  exercise  of 
that  discretion,  however,  to  provide  sleeping  accommodations  for 
the  jury  after  the  first  night,  at  least  This  can  be  readily  done 
in  most  hotels,  without  interferenco  with  the  requirement  to 


1 


PEOPLE  V.  SHELDON. 


551 


should  bo 
',  Sunday, 
I  objected 

tlie  jury, 
every  part 
)jects  and 
,317,  and 
iry  to  tbo 
ng,  March 
invell  that 
y  brouglit 
:,  and  the 
reed  upon 
)  find  the 
the  court: 
the  indict- 
i  llohlen: 
answered, 
t  of  judg- 
khire,  and 
Q  of  Crim- 

Defond- 
imdor  scc- 
i  each  and 
bdivisions 
1,  and  ex- 


how  long 
resting  in 
question 
lore  than 
that,  too, 
cercise  of 
^tions  for 
[lily  done 
eraent  to 


keep  the  jury  together.  But,  while  these  questions  are  not  be- 
fore the  court,  +he  facts  which  suggest  them  are,  and,  together 
with  other  facts,  they  command  an  answer  to  the  query,  nuiy 
there  be  coer^iion  of  a  jury  in  a  capital  case  ?  If  this  question 
be  answered  in  the  negative,  there  follows  the  further  inquiry, 
was  there  coercion  in  this  case  ? 

By  the  ancient  conmion  law,  jurors  Avere  kept  together  as  pris- 
oners of  the  court  until  they  had  agreed  upon  their  verdict. 
Thompson  &  Merriam  on  Juries,  §  310.  It  was  regarded  not 
only  proper,  but  requisite,  that  they  should  be  coerced  to  an 
agreement  upon  a  verdict.  Proffatt,  Jury  Trial,  §  475.  "A 
jury,  swjrn  and  out  in  a  case  of  life  or  member,  cannot  be  dis- 
charged by  the  court  or  any  other,  but  they  ought  to  give  a 
verdict."  Coke  Litt.  227b.  Blackstone,  Com.,  p.  375,  says: 
"The  jury,  after  the  proofs  are  summed  up,  imloss  the  case  bo 
very  clear,  withdraw  from  the  bar  to  consider  their  verdict ;  and, 
in  order  to  avoid  intemperance  and  causeless  delay,  are  to  bo 
kept  without  meat,  drink,  fire,  or  candle,  unless  by  permission 
of  the  judge,  till  they  are  all  unanimously  agreed.  . 
And  it  ha.,  been  held  that,  if  the  jurors  do  not  agree  in  their 
verdict  before  the  judges  are  about  to  leave  the  town,  the  ju<lgos 
arc  not  bound  to  wait  for  them,  but  may  carry  them  to  town  in 
a  cart"  In  the  Doctor  and  Student  (1518),  at  page  271,  it  is 
said:  "I  take  not  the  law  of  the  realm  to  Ix;  that  the  jury,  after 
they  be  sworn,  may  not  eat  nor  drink  till  they  be  agreed  of  the 
verdict;  but  truth  it  is  there  is  a  maxim  and  an  old  custom  in 
the  law  thac  they  shall  not  eat  nor  drink  after  they  be  sworn,  till 
they  have  given  their  verdict,  Avithout  the  assent  and  license  of 
the  justices.  .  .  .  And,  if  tlioy  will  in  no  wise  agree,  I 
think  that  the  justices  may  set  such  order  in  the  matter  as  shall 
seem  to  them  by  their  discretion  to  stand  with  reason  and  con- 
science, by  awarding  a  new  inquest,  and  by  setting  fine  upon 
them  that  they  shall  find  in  default,  or  otherwise  as  they  shall 
think  best  in  their  discretion;  like  as  they  may  do  if  one  of  tlio 
jxiry  die  before  verdict,  or  if  any  other  like  casixalties  fall  in 
that  beiialf."  Mr.  Emlyn,  in  his  preface  to  the  second  edition 
of  the  State  Trials,  printed  in  1730,  says:  ''The  law  requires 
that  the  twelve  men,  of  which  the  jury  consists,  shall  all  agree 
before  they  give  in  a  verdict;  if  they  don't,  they  must  undergo 


'V 


m-^r 


i 


^ ' 


f 


II 


i 


P 


1;''  i'i 


■ii|^ 


jli  y 


652 


AMERICAN  CRIMINAL  REPORTS. 


a  grenter  punishment  than  the  criminal  himself;  they  are  to  be 
confined  in  one  room  without  meat,"  etc.,  "till  they  are  starv'd. 
It  would  be  pretty  hard  to  assign  any  tolerable  reason  for  this 
usage;  if  it  has  seldom  or  never  happen'd,  I'm  afraid  it  has 
sometimes  been  prevented  only  by  the  unjust  compliance  of  some 
of  the  jurors  against  their  own  consciences.  ...  To  what 
end,  therefore,  are  they  to  be  restrained  in  this  manner?  ]t 
may,  indeed,  force  them  to  an  outward  seeming  agreement 
against  the  dictates  of  their  own  consciences,  but  can  never  be 
a  means  of  informing  their  judgment  or  convincing  their  under- 
standing. .  .  .  Why  must  the  jurors  be  compelled  to  an 
agreement  one  way  or  the  other  ?  After  all,  a  forced  agreement 
is  no  better  than  none.  If  the  consent  of  him  who  stands  out 
against  the  I'cst  be  of  any  regard,  it  ought  to  be  free ;  if  of  none, 
then  why  can't  a  verdict  be  given  without  it  ?" 

The  inconsistency  of  insisting  that  every  one  of  twelve  men 
miist  agree  before  a  verdict  can  l)e  rendered,  and  at  the  same 
time  justifying  a  court  in  coercing  one  or  more  jurors  into  an 
agreement  with  their  fellows,  received  early  attention  by  the 
courts  of  this  State. 

In  People  V.  Okott,  2  Johnson's  Cases,  301,  the  defendant 
was  tried  under  an  indictment  for  conspiracy  to  defraud,  and, 
the  jury  being  unable  to  agree,  the  court,  against  the  consent  of 
the  defendant,  ordered  a  juror  withdrawn  and  the  jury  dis- 
charged. Mr.  Justice  Kent,  in  an  opinion  reviewing  prior  cases 
at  length,  paid  his  respects  (at  page  ."JOO)  to  the  rule  formerly 
existing  of  compelling  an  agreement  of  the  jury.  He  said :  ''The 
doctrine  of  compelling  a  jury  to  unanimity  by  the  pains  of  liun- 
ger  and  fatigue,  so  that  the  verdict  in  fact  be  found(Ml  not  on 
temperate  discussion  and  clear  conviction,  but  on  strength  of 
body,  is  a  monstrous  doctrine,  that  does  not  stand  with  con- 
science, but  is  altogether  repugnant  to  a  sense  of  hmnanity  and 
justice.  A  verdict  of  acquittal  or  conviction  obtained  under 
such  circumstances  can  never  receive  the  sanction  of  public  opin- 
ion. And  the  practice  of  former  times,  of  sending  the  jury  in 
carts  from  one  assize  to  another,  is  properly  controlled  by  the 
improved  manners  and  sentiments  of  the  present  day." 

In  People  v.  Goodwin,  IS  Johns.  187,  the  defendant  was  in- 
dicted for  manslaughter.     The  jury  being  unable  to  agree  be- 


are  to  be 
re  starv'd. 
>n  foi'  this 
aid  it  has 
ce  of  some 

To  what 
nner  ?  ]  t 
agrooment 
I  never  ho 
eir  uiuler- 
led  to  an 
figrcenient 
stands  out 
f  of  none, 

I'elvo  men 

the  same 

•s  into  an 

m  by  the 

defendant 
and,  and, 
•onsont  of 
jury  dis- 
rior  cases 
formerly 
lid:  "The 
IS  of  Inm- 
'(1  not  on 
•ength  of 
ivith  eon- 
mity  and 
:>(!  under 
1)1  ic  opin- 
^  jury  in 
d  bv  the 

t  was  in- 
jgree  be- 


PEOPLE  r.  SHELDON. 


553 


fore  the  last  moment  the  court  would  sit,  they  were  discharged. 
The  question  arose  whether  defendant  could  be  again  put  upon 
his  trial  on  the  indictment.  ]n  writing  the  opinion  of  the  court, 
Spencer,  C.  J.,  said:  "In  the  case  of  People  v.  Clcoit  all  the  au- 
thorities then  extant  upon  the  power  of  the  court  to  discharge  a 
jury  in  criminal  cases,  and  the  consequences  of  such  discharge, 
were  very  ably  and  elaborately  examined  by  Mr,  Justice  Kent, 
and  it  would  be  an  unpardonable  waste  of  time  to  enter  upon  a 
re-examination  of  them."  The  chief  judge  quotes  largely  from 
Justice  Kent's  opinion,  and  says :  "The  learned  judge  inveighs, 
with  force  and  eloquence,  against  the  monstrous  doctrine  of  com- 
pelling a  jury  to  unanimity  by  the  pains  of  hunger  and  fatigue, 
so  that  a  verdict  is  not  founded  on  temperate  discussion,  but  on 
strength  of  body.  Although  the  case  of  People  v.  Olcoft  was  a 
case  of  misdemeanor,  the  reasoning  is,  in  my  judgment,  entirely 
applicable  to  cases  of  felony;  and,  although  the  opinion  was 
confined  to  the  case  under  consideration,  a  penisal  of  it  will 
show  that  it  embraces  every  possible  case  of  a  trial  for  crimes." 

Other  comparatively  early  criminal  cases  in  which  the  s"'"e 
question  was  presented  and  passed  on  were  People  v.  Wni'd,  1 
Wheeler,  Cr.  Cases,  409 ;  Grant  v.  People,  4  Parker's  Crim.  E. 
527;  People  v.  Green,  13  Wend.  55;  Uniled  States  v.  Perez,  9 
Wheat.  579. 

In  Green  v.  Telfair,  11  IIow.  Pr.  200,  a  motion  was  made  to 
set  aside  a  verdict  on  affidavits.  The  judge  said  to  the  jury, 
in  substance:  This  case  has  excited  considerable  feeling;  the 
natiire  of  jury  trials  implies  concessions  and  compromise;  no 
juror  should  control  result,  or  othenvise  the  verdict  would  be 
that  of  one  man,  not  that  of  twelve;  that  for  five  years  he  had 
discharged  but  one  jury  that  had  failed  to  agree,  and  he  should 
si'iul  them  out  again,  and  hoped  they  would  agree.  One  of  the 
jurors  said  he  supposed  (it  being  Saturday  afternoon)  their 
duties  would  be  at  an  end,  and  they  Avoidd  he  discharged  at 
twelve  o'clock,  to  M-hich  the  judge  replied  that  this  was  not  so ; 
that  he  was  authorized  to  receive  the  verdict  on  Sunday,  and, 
besides,  it  was  his  intention  to  go  to  Albany  by  the  next  train, 
and,  if  they  did  not  agree  before  he  left,  he  would  return  on 
^Monday  and  receive  their  verdict.  Jury  retired,  remained  ab- 
sent about  half  an  hour,  returned  into  court,  and  rendered  a  ver- 


III f  " 


n 


.'Jsl 


'>}:, 


i 


Wi 


554 


AMERICAN  CRIMINAL  REPORTS. 


diet  for  plaintiff.  Mr.  Justice  Harris,  before  whom  the  motion 
was  made  to  set  aside  the  verdict  on  the  ground  of  coercion,  said 
in  the  course  of  Jiis  opinion :  "An  attempt  to  influence  the  jury 
by  referring  to  the  time  they  are  to  be  kept  together,  or  the  in- 
convenience to  which  they  are  to  be  subjected,  in  case  they  are 
so  pertinacious  as  to  adhere  to  their  individual  opinions,  and 
thus  continue  to  disagree,  cannot  be  justified.  A  judge  has  no 
right  to  threaten  or  intimidate  a  jury  in  order  to  affect  their 
deliberations.  I  think  he  has  no  right  to  even  allude  to  his  own 
purposes  as  to  the  length  of  time  they  are  to  be  kept  together. 
There  should  be  nothing  in  his  intercourse  with  the  jury  hav- 
ing the  least  appearance  of  duress  or  coercion.  .  .  .  That, 
should  they  continue  to  disagree,  they  are  not  to  be  exposed  to 
unreasonable  inconvenience,  nor  to  receive  the  animadversion 
of  the  court." 

In  Slater  v.  Mead,  53  How.  Pr.  59,  the  judge  said  to  the 
jury:  "You  miist  agree  upon  a  verdict.  I  cannot  discharge  you 
until  you  agree  upon  a  verdict."  The  jury  retired,  and  soon  re- 
turned and  rendered  their  verdict  of  no  caiise  of  action.  Ver- 
dict was  set  aside  on  motion  at  special  term,  the  opinion  citing 
with  approval  the  remarks  of  Mr.  Justice  Harris  in  Green  v. 
Telfair,  supra. 

In  Ingersoll  v.  Town  of  Lansing,  51  Hun,  103,  5  N".  Y.  Supp. 
288,  the  court  made  no  provision  for  discharging  the  jury  in 
the  absence  of  the  presiding  justice  from  the  county,  unless 
they  agreed,  which  compelled  them  to  bring  in  a  verdict  or  re- 
main in  confinement  for  four  days  without  aid,  protection,  or 
even  the  presence  of  the  court.  On  appeal,  this  was  held  to  con- 
stitute coercion,  and  therefore  that  the  trial  court  erred  in  re- 
fusing to  set  aside  the  verdict.  In  the  course  of  the  opinion, 
which  was  written  by  Mr.  Justice  Follett,  the  opinion  in  Green 
V.  Telfair  is  cited  with  approval,  and  also  Pierce  v.  Pierce,  38 
Mich.  412.  In  the  latter  case  the  jury  retired  on  Tuesday  p.  m. 
Wednesday  p.  m.  officer  informed  the  judge  that  they  could  not 
agree.  Thereupon  the  judge  directed  the  officer  to  inform  them : 
"The  judge  does  not  believe  it  yet ;  and  you  might  say  to  them 
that  it  is  essential  that  they  agree  to-night,  as  I  am  going,  and 
I  won't  be  back  until  day  after  to-morrow,  and  thoy  might  not 
get  discharged  until  I  come  back,  as  Judge  Coolidge  is  going  to 


the  motion 
rcion,  said 
!e  the  jury 

or  the  iu- 
e  they  are 
lions,  and 
Ige  has  no 
ffect  their 
to  his  own 

together. 

jury  hav- 

That, 

exposed  to 

ladversion 

nd  to  the 
hargc  you 
d  soon  rc- 
on.  Ver- 
ion  citing 
Green  v. 

Y.  Supp. 
e  jury  in 
ty,  unless 
lict  or  re- 
Dotion,  or 
Id  to  con- 
"od  in  re- 
opinion, 
in  Green 
'ierce,  38 
lay  p.  m. 
Jould  not 
•m  them : 
'  to  them 
)ing,  and 
light  not 
going  to 


PEOPLE  V.  SHELDON. 


555 


be  here."  The  verdict  was  returned  within  an  hour.  It  was 
held  that  the  verdict  should  be  regarded  as  coerced,  the  court 
saying:  "Every  attempt  to  drive  men  into  an  agreement  which 
they  would  not  have  reached  freely  is  a  penersion  of  justice. 
The  one  may  be  right  as  well  as  the  eleven,  and  if  right  may  be 
able  to  persuade  them.  .  .  .  And  it  is  very  possible,  at  least^ 
that  a  message  of  this  kind  given  would  be  regarded  by  the  out- 
standing juror  as  a  somewhat  strong  intimation  of  the  judge's 
opinion  of  the  plainness  of  the  case  and  the  impropriety  of  hold- 
ing out" 

In  Physioc  v.  Shea,  75  Ga.  4C6,  a  new  trial  was  granted, 
where  a  verdict  was  rendered  shortly  after  the  judge  told  the 
jury  (which  had  been  out  all  night)  that  they  could  have  break- 
fast at  their  own  expense,  they  having  had  no  supper. 

Tn  Chesapeahe,  0.  &  S.  W.  B.  R.  Co.  v.  Barlow,  86  Tenn. 
587,  8  S.  W.  Rep.  147,  the  jury  reported  inability  to  ap-ec. 
The  trial  judge  said:  ''This  is  too  common,  and  you  ought  to 
agree;"  that  he  would  not  discharge  them,  but  should  keep  them 
togother  for  the  remaining  three  Aveeks  of  the  term  unless  they 
agreed.    They  agreed  next  ihiy.    The  verdict  was  set  aside. 

In  Slate  v.  Byhec,  17  Kan.  402,  the  court  said  to  the  jury 
that  they  ought,  by  compromise  and  surrender  of  individual 
opinion,  to  agree,  and  that  failure  to  do  so  would  be  an  imputa- 
tion on  court  and  juiy.  In  an  opinion  written  by  Judge  Brewer 
the  court  presented  its  reasons  for  reversing  the  judgment,  in 
part,  that  while  the  court  might  call  the  attention  of  the  jury  to 
many  matters  that  rendered  an  agreement  desirable,  such  as 
time  already  taken,  improbability  of  securing  additional  testi- 
mony, the  general  public  benefit  in  a  speedy  close  of  a  litigation, 
the  question  of  expense  to  parties  and  the  public,  yet  no  jnrni' 
should  be  influenced  to  a  verdict  by  fear  that  failure  to  do  so 
would  be  regarded  by  the  public  as  reflecting  upon  either  his  in- 
telligence or  his  integrity.  ''Personal  considerations  should" 
never  be  permitted  to  influence  his  conclusion,  and  the  thought 
of  them  should  never  be  presented  to  him  as  a  motive  of  action." 
That  was  a  criminal  case,  and  it  may  be  said,  in  passing,  that 
the  language  used  by  the  trial  judge  to  the  jury  is  very  much 
like  that  used  on  one  occasion  by  the  judge  in  the  case  at  bar. 
The  intelligence  of  the  jury  was  not  more  sharply  reflected 


'llli 

II-  i!/      I'r       If: 

-<   If'  ' 


i"  f!" 

1  f         1 


mi 


I^V 


l^ . 


.j/r  ii 


1. ;. 


c 


II 


m 

HHii, 

'MrTW'  ^^ 

i  ^  ^^' 

Ml  '■ 

mi 

m\ "  I 

1^ 

i'  '■ 

i.V 

a  > 


1-%''.. 


l!  I 


55C 


AMERICAN  CRIMINAL  REPORTS. 


upon  in  that  case  than  in  this,  for  the  trial  justice  said:  "This 
case  has  occupied  nearly  seven  weeks,  and  to  say  now,  at  tho 
end  of  all  that  time, — at  the  end  of  all  this  labor  and  expense, — 
that  the  qiiestion  is  no  better  off  than  it  was  when  started,  is  al- 
most to  confess  incompetently  *"■  ^^'^  matter." 

In  Hancock  v.  Elam,  3  IJaxt.  (Tenn.)  33,  tho  judge  ordered 
the  jury  locked  up  until  they  should  agree,  not  allowing  them 
to  have  dinner.    Held  error. 

Speannan  v.  Wilson,  4-t  Ga.  473,  held:  "The  court  erred  in 
overruling  the  motion  for  a  new  trial,  upon  the  ground  that, 
after  the  jury  was  brought  in  and  answered  they  had  not  and 
were  not  likely  to  agree,  he  stated  to  them  that  i  they  did  not 
briug  in  a  verdict  very  soon  he  would  make  arrangements  to 
carry  them  to  Greensboro.  This  question  was  decided  in  31 
Ga.  025." 

In  10  Am.  &  Eng.  Enc.  Law,  522,  the  nile  is  said  to  be  that 
"language  on  the  part  of  the  court,  the  obvious  tendency  of 
which  is  to  coerce  an  agreement  on  the  part  of  the  jury,  affords 
grounds  for  a  new  trial.  To  insist  too  strenuously  upon  the 
necessity  of  an  agreement  may  have  such  effect" 

Teire  Haute  tf?  Ind.  R.  11.  Co.  v.  Jachson,  81  Ind.  10,  24, 
was  an  appeal  from  a  decision  overruling  a  motion  for  a  new 
trial.  Judgment  was  reversed,  and  a  new  trial  granted,  upon 
the  groimd  of  coercion.  After  tho  jury  had  retired  and  been 
out  nine  hours,  the  trial  court,  without  consent  of  the  apt)!''  r, 
"caused  the  jury  to  be  informed  through  the  bailiff  ha',  i;.,,  .'■'  ■-. 
in  charge  that,  if  they  did  not  agree  upon  a  verdict,  thf  irt 
would  keep  them  until  Saturday  night,  a  period  of  four  uays, 
to  which  action  of  the  court  the  defendant  at  the  proper  time, 
as  soon  as  her  attorneys  learned  of  such  action,  objected  and  ex- 
cepted." "The  action  of  the  court  cannot  be  justified.  It  con- 
stitutedj  as  it  must  have  been  intended  it  should,  a  kind  of  coer- 
cion upon  the  jury,  which  was  inronsistent  with  their  proper 
independence.  ...  A  plain  error  was  committed.  Its  plain 
tendency  was  to  influence  the  jury." 

Betry  v.  People,  1  X.  Y.  Cr.  R.  43,  47,  reported  in  memoran- 
dum (77  1^.  Y.  588),  is  not  at  all  in  conflict  with  the  trend  of 
all  recent  authority  upon  this  question.    In  that  case  the  jury, 


PEOPLE  V.  SHELDON. 


557 


lid:  "This 
)w,  at  the 
jxpcnso, — 
rted,  is  al- 

^e  ordered 
ving  them 

t  erred  in 
)und  that, 
d  not  and 
^y  did  not 
ements  to 
led  in  31 

to  be  that 
idency  of 
y,  affords 
upon  tho 

1.  10,  24, 
for  a  new 
ted,  upon 
and  been 

Rpl?!-''     :i-. 

'•ill',       ».  '  *  i 

thf  irt 
our  uavs, 
per  time, 
d  and  ex- 
.  It  con- 
d  of  coer- 
ir  proper 
Its  plain 

nemoran- 

trend  of 

the  jury, 


after  being  charged,  retired  for  deliberation,  and  upon  return- 
ing \a)  tlio  court  asked  for  further  instructions,  and  then  an- 
nounced their  inability  to  agree  upon  a  verdict.  The  recorder, 
addressing  the  jury,  said:  "1  would  discharge  you,  but  under 
my  sense  of  duty  1  cannot.  After  a  few  days  tlie  case  has  been 
j)resented  to  you,  thoroughly  argued  and  tried.  Witnesses  were 
examined  and  cross-examined.  I  don't  care  what  you  find, 
guilty  or  not  guilty  ;  it  is  perfectly  immaterial  to  me.  Hut  1  say 
it  is  my  duty,  if  you  can  lot  agree,  that  I  shall  lock  you  up  for 
the  night.  That  is  a  most  ungrateful  thing  to  do  to  any  jury. 
As  1  ttdd  you  on  Friday  night,  I  didn't  want  you  detained  from 
your  families,  and  I  do  not  now.  If  you  cannot  agree,  I  shall 
order  an  officer  to  take  you  in  charge.  I  will  give  you  fifteen 
minutes,  and  see  if  you  can  arrive  at  a  conclusion."  But  for 
the  expression  of  the  trial  judge,  "I  shall  lock  you  up  for  the 
night,"  his  remarks  would  have  presented  no  ground  for  criti- 
cism. This  court  was  of  the  opinion  that  the  trial  judge  did 
not  intend  to  coerce  the  jury ;  that  he  sought  merely  to  convey 
the  idea  that  they  would  have  to  remain  over  night  at  the  court. 
This  court  said  in  its  per  mrinm  opinion:  "The  alleged  threat 
to  lock  up  jurors  if  they  failed  to  agree  was,  we  think,  only  in- 
tended as  a  statement  that  the  jury  would  have  to  remain  over 
night,  as  the  court  would  adjourn.  }\^othing  like  a  threat  of 
imprisonment  or  punishment  could  have  l)een  intended."  The 
decision  of  the  court,  therefore,  was  that  there  had  been  no  at- 
tempt at  coercion,  the  language  com|)lained  of  iiot  being  sus- 
ceptible of  a  constniction  that  would  give  it  that  effect  with  the 
jury,  and  not  that  a  judgment  would  be  allowed  to  stand  either 
■where  the  trial  court  had  attempted  to  coerce  the  jury,  or  the 
language  used  by  him  was  of  such  a  character  that  it  probably 
had  that  effect.  Phmix  Ins.  Co.  v.  Moor],  81  Ala.  3;}5,  and 
Taylor  v.  Jones,  2  Head  (Tenn.),  5G5,  are  in  line  with  cases 
cited. 

Reference  has  now  been  made  to  nearly  all  the  cases  which  I 
have  been  able  to  find,  of  comparatively  recent  date,  and  they 
establish  that  the  old  rule  permitting  coercion  of  a  jury  in  order 
to  secure  a  verdict  has  been  swept  away ;  that,  under  our  pres- 
ent method,  the  independence  of  a  juror  is  respected.    An  at- 


M 


■Al]   .; 


liH;: 


m  i 


iji 


1= 


Ui 


I 

f 

Hi'  1 

9k 

i 

n 

i 

fi 

t 

4!m 

ll 

tss 

1 

1 

f^ 


B 


I 


ill 


If; 


558 


AMERICAN  CRIMINAL  REPORTS. 


tempt  to  drive  the  members  of  a  jury  into  an  ngrocmont  is  be- 
yond the  power  of  tbe  court,  and  an  obvious  eifort  to  effect  audi 
a  result  demands  a  new  trial. 

In  this  case  we  can  well  understand  the  anxiety  of  the  learned 
judge,  Avlio  presided  at  the  trial,  to  have  it  ended  by  a  verdict  of 
a  juiy.  The  trial  had  lasted  nearly  seven  weeks ;  it  had  been  a 
severe  strain  upon  the  jury  to  be  kept  together  all  that  time;  the 
expense  had  been  exceedingly  great  for  so  small  a  county;  and 
to  have  all  this  inconvenience,  labor,  and  expense  borne  for  noth- 
ing seemed  a  most  unfortunate  result,  and  one  to  be  avoided  if 
possible.  But  in  the  attempt  to  avoid  it  the  learned  judge,  as 
we  think,  after  a  very  careful  consideration  of  the  subject,  fell 
into  error,  and,  as  a  result,  very  likely  coerced  some  members  of 
the  jury  into  an  agreement  with  their  fellow  members  against 
their  own  personal  convictions. 

Some  of  the  grounds  upon  which  this  conclusion  rests  will 
now  be  given. 

At  8:30  p.  m.  of  the  11th  day  of  March,  1897,  the  jury  re- 
tired to  consider  a  case,  the  trial  of  which  had  consumed  nonrly 
seven  weeks,  during  all  of  which  time  they  had  been  kept  to- 
gether. All  of  that  night  and  imtil  11 :30  a.  m.  of  the  next  day 
the  jury  were  presumably  engaged  in  discussing  the  evidence, 
but  at  the  hour  last  named  they  came  into  court  and  asked  two 
questions  about  evidence.  The  information  asked  for  was  fur- 
nished by  reading  a  portion  of  the  stenographer's  minutes.  At 
3:25  p.  m.  of  the  same  day  the  jury  came  into  court  and  an- 
nounced that  they  had  not  agreed  upon  a  verdict.  The  court 
then  addressed  the  jury  upon  the  importance  of  a  decision  of 
the  question  submitted  to  them,  concluding  as  follows:  "It  is 
for  the  interests  of  all  concerned  and  public  jiistice  that  there 
should  be  a  decision  of  this  case,  so  that  the  question  shall  be 
put  at  rest.  I  cannot  hear  of  a  disagreement  of  this  jury.  You 
must  retire,  gentlemen."  The  jury  at  once  retired,  and  two 
hours  later  asked  for  further  instructions,  which  were  fur- 
nished by  reading  from  the  stenographer's  minutes.  The  next 
day,  at  12 :45  p.  m.,  the  jury  presented  to  the  court  a  written 
communication,  which  read  as  follows:  "The  probability  or  even 
possibility  of  this  jury  ever  agi'ceing  is  impossible,  in  my  opin- 
ion.    [Signed]  Geo.  J.  Ilolden,  Foreman."    For  forty  hours, 


PEOPLE  V.  SHELDON. 


ir>o 


nont  is  1)0- 
elfcct  sudi 

:lic  Icnrnod 
,  verdict  of 
Imd  been  a 
t  time ;  the 
>unty;  and 
e  for  notli- 
avoided  if 
I  judge,  as 
abject,  fell 
nenibcrs  of 
3r3  against 

rests  will 

16  jury  re- 
ned  nearly 
'n  kept  to- 
e  next  day 
!  evidence, 
asked  two 
r  was  fur- 
nutes.  At 
ft  and  an- 
The  court 
lecision  of 
ws:  "It  is 
that  there 
n  shall  be 
ury.  You 
,  and  two 
were  fur- 
The  next 
a  written 
ity  or  even 
I  my  opin- 
rty  hours, 


covering  two  entire  nights,  th'5  jury  had  been  engaged  in  tlw; 
consideration  of  the  testimony  in  a  small  room,  and  now  for 
the  first  time  reported  their  deliberate  judgment  to  be  that  an 
agreement  was  impossible.  The  court  responded  to  this  coni- 
inunication  as  follows :  "The  order  will  be  that  you  l)e  conducted 
to  your  hotel,  and  that  you  be  brought  back  for  further  delibera- 
tion. ...  I  have  made  my  own  arrangements  so  as  to  be 
back  at  your  call,  both  for  to-day  and  for  some  lime  in  the 
future,  oo  that  this  case  may  be  fully  disposed  of,  if  there  is  a 
jtossibility  for  it.  .  .  ."  Language  more  apt  to  convey  to  a 
jury  that  the  hardships  of  the  past  forty  hours  were  to  be  con- 
tinued for  a  considerable  time  in  the  future  cannot  easily  be 
imagined.  On  their  return  the  court  addressed  them  at  length, 
saying,  among  other  things:  "I  don't  know  that  you  fully  ap- 
])reciate  the  gravity  and  importance  to  this  comnmnity  and  to 
the  State  that  a  decision  should  be  reached  in  this  matter,  an<l 
that  this  important  question  shall  be  settled  whether  the  defen<l- 
ant  is  guilty  or  innocent.  This  case  has  occupied  nearly  seven 
weeks,  and  to  say  now,  at  the  end  of  all  that  time, — at  the  end 
of  all  this  labor  and  expense, — that  the  question  is  no  better  off 
than  it  was  when  it  started,  is  almost  to  confess  incompetency 
in  this  matter.    .    .    ." 

We  suspend  quoting  from  the  remarks  of  the  court  long 
enough  to  again  call  attention  to  State  v.  Byhee,  supra,  in  which 
the  court  reversed  a  judgment  of  conviction  because  the  trial 
court,  in  urging  the  jury  to  agree,  said  "that  failure  to  do  so 
would  be  an  imputation  on  court  and  jury."  In  the  opinion  of 
the  court,  written  by  Judge,  now  Mr.  Justice  Brewer,  it  was 
said :  "No  juror  should  be  induced  to  agree  to  a  verdict  by  a  fear 
that  a  failure  to  so  agree  would  be  regarded  by  the  public  as  re- 
flecting upon  either  his  intelligence  or  his  integrity.  Personal 
consideration  should  never  be  permitted  to  influence  his  con- 
clusions, and  the  thought  of  them  should  never  be  presented  to 
him  as  a  motive  for  action."  The  position  taken  by  that  court 
meets  with  our  approval,  and  it  is  alike  applicable  to  the  com- 
ment of  the  trial  court  in  this  case  that  a  failure  to  agree  "is  al- 
most to  confess  incompetency  in  this  matter." 

Taking  up  again  the  address  of  the  court  to  the  jury,  who 
had  solemnly  announced  that  an  agreement  was  impossible,  we 


I 


!i  [ill 


il 


fr 


JiiiK 


560 


AMERICAN  CRIMINAL  REPORTS. 


quote:  "I  have  laid  aside  my  other  engagements,  so  that  this 
case  can  be  attended  to,  because  I  ajjpreciate  the  importane(! 
of  it,  and  I  would  like  to  enforce  upon  you  an  appreciation  of 
the  importance  of  settling  this  question.  It  has  got  to  bo  set- 
tled." Later  on,  but  in  this  same  address,  the  court  said:  "I 
know  that  your  room  is  a  narrow  place,  and  that  you  are  a  good 
deal  confined  there,  and  for  that  reason  1  have  arranged  with 
the  shorilf  that  you  shall  occupy  this  room  from  now  on  until 
the  completion  of  your  labors.  Of  course,  I  don't  know  how 
long  it  will  take.  .  .  ."  The  address  was  followed  by  an 
order,  entered  on  the  minutes  of  the  court,  "that  the  jury  should 
be  conducted  to  their  meals  at  the  usual  hours  to-morrow,  Sun- 
day, and  including  ^londa^'  morning."  ^londay  morning  camo, 
and  the  jury  sent  word  to  the  court  that  they  had  agreed ;  they 
had  been  out  for  about  eighty-four  hours  without  beds  or  cots; 
ittrty  of  those  hours  thev  had  been  confined  in  a  small  room. 
From  the  remarks  of  the  court,  and  the  treatment  they  had  re- 
ceived, they  had  eveiy  reason  to  believe  that  a  still  longer  con- 
finement on  chairs  and  hard  benches  was  in  store  for  them, — 
a  physical  strain  such  as  only  strong  men  could  stand.  If  one 
or  more  mend)ers  of  the  jury  surrerulered  their  convictions  to 
\n\X  an  end  to  the  punishment  they  were  undergoing,  and  with 
an  indefinite  continuance  of  which  they  were  all  threatened,  it 
is  not  to  be  wondered  at.  Only  very  strong  r'laractera  could 
have  longer  resisted  the  importunities  of  associates  and  the  ap- 
])eal  of  their  own  exhausted  bodies  for  relief  from  the  strain  to 
which  they  had  been  so  long  subjected.  Enough  has  been  said 
to  call  attention  to  some  of  the  reasons  which  have  led  us  to  the 
conehision  that  the  agreement  of  this  jury  should  be  regarded 
as  coerced.  A  verdict  thus  obtained  ought  not  to  be  allowed  to 
stand  in  any  case,  and,  least  of  all,  in  one  involving  a  human 
life. 

The  judgment  shoxild  be  reversed,  and  a  new  trial  granted. 
All  concur.    Judgment  reversed,  etc. 

Notes  (by  J.  F.  G.).— In  West  Virginia  a  jury  In  a  criminal  case  re- 
tired about  5:30  p.  m.,  and  after  dinner  the  next  day,  being  called  in 
court  and  additional  instructions  given,  the  Jury  was  about  to  retire 
again,  when  a  juror  suggested  that  he  believed  they  could  not  agree, 
to  which  the  court  responded:  "I  see  no  reason  why  the  jury  cannot 


PEOPLE  V.  SHELDON. 


501 


0  tlint  this 
iinportaiK'f! 
'eciation  of 
t  to  bo  st't- 
rt  said:  "[ 

are  a  good 
iiiged  with 
w  on  until 
know  liow 
wed  by  an 
nry  should 
rrow,  Sun- 
ning canio, 
;rt't'd;  they 
da  or  cots ; 
nail  room, 
loy  had  rc- 
ongor  con- 
)r  them, — 
d.     If  one 
victions  to 
,  and  with 
eatened,  it 
tera  could 
nd  the  ap- 
e  strain  to 
been  said 
1  us  to  the 
3  regarded 
allowed  to 
;  a  human 

1  granted. 


nal  case  re- 
g  called  In 
It  to  retire 
not  agree, 
ury  cannot 


agree  upon  a  verdict  In  this  case."  This  was  held  to  bo  reversible 
error  (State  v.  Hurst,  11  W.  Va.  54);  the  following  cases  being  cited 
in  the  opinion:  Kosa  v.  GUI  and  wife,  1  Wash.  88;  Keel  d-  Uubertn  v. 
Hubert,  1  Wash.  203;  Oreyt-y  v.  liaugh,  2  Leigh,  655;  MvUoweira 
Ex'ra  V.  Crawford,  11  Oratt,  4fy,  1  Rob.  Per.  338,  344;  Doss'  Case,  1 
Oratt.  559.  The  case  la  reror*.ed  In  3  American  Criminal  Reports,  100. 
Two  other  authorities  ujion  this  subject  are  People  v.  KindvWernher. 
100  Cal.  367,  34  Pac.  Rep.  852,  and  Kelly  v.  State,  33  Tex.  Crlm.  Rep. 
31,  24  S.  W.  Rep.  285.  The  opinions  are  given  below.  In  the  Kelly 
Case  we  omit  a  part  of  the  opinion  which  does  not  bear  upon  this 
subject. 

PEOI'LE  v.    KlNDELnERGHER. 

De  Haven,  J.  The  defendant  was  found  guilty  of  the  crime  of  as- 
sault with  intent  to  commit  rape,  and  was  sentenced  by  the  judgment 
of  the  superior  court  to  imprisonment  in  the  Sta  d  prison  for  a  term  of 
seven  years.  The  appeal  here  is  from  the  judgment,  and  is  brought 
to  this  court  upon  the  judgment  roll  alone,  without  any  bill  of  ex(;ep- 
tlons.  The  jury  retired  to  deliberate  upon  their  verdict  at  nine  o'clock 
In  the  evenlnc,  and,  not  having  agreed,  the  jurors,  upon  their  own  re- 
quest, were  brought  into  court  at  ten  o'clock  in  the  forenoon  of  the 
next  day,  when  the  following  proceedings  took  place:  "The  court:  Well, 
upon  what  point  do  you  desire  instruction  or  points?  A  juror:  By 
request  of  the  jurymen,  I  would  ask  if  there  could  be  any  other  form 
of  verdict  in  the  case?  The  court:  Is  that  all?  A  juror:  That  is  all, 
except  that  we  are  unable  to  agree.  No  prospect  of  agreeing.  The 
court:  In  reply  to  the  latter  part  of  the  statement — that  the  jury  are 
unable  to  agree,  and  that  there  is  no  prospect  of  their  agreeing — the 
court  has  this  to  say:  That,  in  view  of  the  testimony  in  this  case,  the 
court  is  utterly  at  a  loss  to  know  why  twelve  honest  men  cannot  agree 
in  this  case.  Let  me  have  that  information,  please.  In  that  connec- 
tion, further,  I  have  this  to  say:  That,  in  my  short  experience  upon 
the  bench,  I  have  occasionally  been  associated  with  juries  where  some 
jurors,  having  an  idea  that  they  are  smart  men,  prominent  men,  with 
large  heads  and  big  capacity,  on  going  to  the  jury  room,  take  occasion 
to  express  ill-digested  and  rapid  opinions  upon  the  case,  and  then 
stick  to  these  opinions,  right  or  wrong,  unreasonably  refusing  to  listen 
to  the  opinion  and  arguments  of  their  fellow  jurors,  and  so  hang  a 
jury.  I  have  on  some  occasions,  having  something  of  a  personal 
knowledge  of  jjirors  on  the  jury,  taken  occasion  to  caution  the  jurors 
against  that  course,  and  to  say  that  jurors  ought  to  go  into  the  jury 
box  without  prejudice,  without  fear,  without  favor,  with  a  desire  to 
arrive  at  the  truth,  to  sift  and  digest  the  testimony  carefully  and  con- 
scientiously, and  not  stubbornly  to  express  an  ill-digested  opinion,  and 
stick  to  it.  I  repeat,  gentlemen,  that  I  see  no  reason  on  earth  why  a 
Jury  in  this  case,  upon  this  testimony,  cannot  agree." 

In  thus  addressing  the  Jury,  the  learned  judge  of  the  superior  court 

committed  an  error  to  the  prejudice  of  the  defendant.    Nothing  can  be 

clearer  than  that  in  this  charge  the  judge  informed  the  jury  that  he 

had  a  fixed  and  definite  conviction  in  regard  to  the  verdict  which  they 

VouXI  — 3« 


B' ■(" 


Mi  ( f  ■-: 


u 


t  ?^ 


I    'l 


:>(i2 


AMERICAN  CRIMINAL  RP:P0RTS. 


ought  to  rotiirn,  and  that  In  hla  opinion  the  evidence  to  support  ench 
foncluslon  was  so  plain  and  sntlsiaitory  that  honost  and  Intelligent 
juroiB,  who  had  heaid  the  U'Htiniony,  ought  not  to  disagree  as  to  Us 
\vol;j;ht  uud  effect;  and  wo  think  the  jury  understood,  or  at  least  may 
have  uiHJprstood,  from  these  unguarded  remarks,  that  In  the  opinion 
of  the  judgo  the  df'fondant  was  guilty,  and  that  such  should  be  the 
verdiot.  When,  upon  the  trial  of  a  defendant,  the  evidence  is  clearly 
insutllcient  to  justify  a  verdict  of  guilty,  It  is  the  duty  of  the  judge 
to  so  inform  the  jury,  and  to  adviae  a  verdict  of  acquittal.  This  power 
is  sometimes  exercised  by  courts,  and  is  one  so  frequently  Involu'd  in 
the  trial  of  criminal  cases  that  its  existence  may  be  regarded  as  a 
matter  of  common  knowledge  upon  the  part  of  jurors  of  ordinary  in- 
telligence and  experience;  and  this  fact  is  not  to  be  lost  sight  of  in 
considering  the  impression  likely  to  have  been  made  upon  the  jury  by 
the  charge  of  the  judge  In  this  case,  To  any  one  knowing  that  It  Is  the 
duty  of  the  court  to  advise  an  acquittal  if  the  evidence  is  such  that, 
in  the  opinion  of  the  judge,  twelve  honest  men  would  have  no  rlglit 
to  convict  him,  the  remarks  of  the  judge  in  this  case  could  not  fail  to 
create  the  impression  that  he  thought  the  jury  ought  to  convict  upon 
the  evidence  before  them.  But  it  is  not  necessary  that  we  Bho\ild  lie 
able  to  say  that  the  jury  must  have  so  understood  the  charge.  Unless 
it  appears  that  it  could  not  have  been  so  understood,  we  cannot  say 
that  the  charge  was  without  prejudice  to  the  defendant.  The  court 
has  no  right,  except  when  advising  an  acquittal,  to  give  any  expression 
of  its  opinion  as  to  the  weight  of  evidence,  or  to  tell  the  jury  that  the 
evidence  is  so  clear  that  they,  as  honest  men,  ought  not  to  disagree, 
which  is  in  elfect  the  same  as  telling  them  that  there  Is  no  conflict  in 
the  evidence,  and  that,  as  honest  men,  they  can  render  but  one  ver- 
dict. In  a  subsequent  part  of  the  charge  the  learned  judge  did  inform 
the  jury  that  they  were  the  sole  judges  of  all  questions  of  fact,  and  of 
the  credibility  of  the  witnesses,  and  that  the  court  had  no  right  to 
trench  upon  their  province  in  this  respect;  but  the  error  already  no- 
ticed in  the  previous  part  of  the  charge  was  not  cured  by  this  suljse- 
quent  statement.  The  fact  still  remained  impressed  upon  the  minds 
of  the  jurors  that  it  was  the  opinion  of  the  judge  that  there  ought  to 
be  no  disagreement,  and  that  the  testimony  would  justify  but  one  ver- 
dict. Judgment  reversed,  and  cause  remanded  for  a  new  trial. 
McFarland  and  Fitzgerald,  JJ.,  concurred. 

Kklly  v.  State. 

SiMKiss,  J.  Appellant  was  convicted  of  seduction,  and  his  punish- 
ment assessed  at  two  years  in  the  penitentiary. 

1.  .    .    . 

2.  We  think  that  the  remarks  of  the  court  were,  under  the  circum- 
stances of  this  case,  calculated  to  injure  appellant.  It  is  shown  by 
the  bill  of  exceptions  that  after  being  out  nineteen  hours  the  jury 
were  brought  into  court,  and,  in  answer  to  questions,  answered  that 
they  "had  not  disagreed  as  to  the  law,"  whereupon  the  court  remarked 

-that  "it  seems  strange  you  would  fall  to  agree,  when  there  is  so  little 
conflict  in  the  evidence.    If  It  was  a  long,  complicated  case,  with  con- 


b-r|       M 


STEWARD  V.  PEOPLE 


503 


flicting  teBtlmony,  the  court  could  readily  Bee  a  cause  for  fnlhim  to 
agree,"  etc.  In  his  comment  on  the  bill  of  exceptions,  the  court  says; 
"The  court  never  intimated  to  the  jury  regarding  any  fact  toHtlflcd  to 
in  the  cause,  and  never  told  the  Jury  that  they  must  render  a  verdict, 
hut  urged  them  to  consider  the  evidence,  apply  It  to  the  law,  and  ren- 
der a  verdict  accordingly."  It  Is  true  the  court  never  Intimated  Its 
opinion  regarding  any  one  fact  In  the  case,  but  the  trouble  Is  Its  re- 
marks tended  to  sweep  away  the  defense  In  bulk.  The  only  conflicting 
testimony  was  that  establishing  the  defense  of  a  want  of  chnstlly,  and 
non-promise  of  marriage,  which  the  court  states  to  the  Jury  in  very 
little.  That,  perhaps,  was  true,  but  the  court  was  forbidden  to  say  it. 
Code  Crlm.  Proc,  art.  729.  It  certainly  seems  to  have  quickly  unhung 
the  jury.  It  is  the  safer  and  fairer  plan,  when  the  court  ascertains 
that  the  jury  are  hung  on  a  question  of  fact,  to  send  them  back  with- 
out remark.    The  judgment  is  reversed,  and  cause  remanded. 


Steward  v.  People. 


M  '.< 


his  punlsh- 


173  111.  4C4— 50  N.  E.  Rep.  1056. 

Decided  June  18,  1898. 

Larceny:   Elements  of — No  consent  in  larceny. 

1.  Where  the  owner  of  property  voluntarily  parts  with  its  possession 

there  can  be  no  larceny,  as  that  crime  always  Involves  the  tak- 
ing and  conversion  of  property  without  the  owner's  consent. 

2.  Inducing  the  owner  of  a  draft  to  part  with  the  title  thereto  by 

fraudulent  and  unfair  representations  is  not  larceny  where  the 
owner  intended  to  part  with  such  title,  though  at  the  time  of  pro- 
testing his  unbelief  in  such  representations,  and  though  he  after- 
wards demanded  the  return  of  his  draft. 

Error  to  the  Criminal  Court  of  Cook  County;  Hon.  A.  N. 
Waterman,  Judge,  presiding.    Eeversed. 

AiTiold  Tnpp,  for  plaintiff  in  error. 

Edward  C.  Ahin,  Attorney-General  (Charles  8.  Deneen, 
State's  Attorney;  Harry  Olsen,  Assistant;  C.  A.  Hill  and  B.D. 
Monroe,  of  counsel),  for  the  People. 

IIr.  Justice  Caijtwrtgiit  delivered  the  opinion  of  the  court. 

Plaintiff  in  error  was  convicted  in  the  criminal  court  of  Cook 

county  of  the  larceny  of  a  draft  for  $50  from  Herman  Klep- 


:l: 


p 

¥ 

,  f 

i 

'  i     i  ! 


fifPeBHi^' 

•I 

K^^W 

I 

BH^B^ 

ii 

i^HHr 

''  f: 

i1h 

i      1- 

5G4 


AMERICAN  CRIMINAL  REPORTS 


Etein,  and  was  sentenced  to  imprisomucnt  in  the  penitentiary. 
Defendant  was  a  doctor,  occupying  an  office  in  the  Lakeside 
Building,  in  Chicago.  Herman  Klepstoin  resided  near  Gro- 
ton,  South  Dakota.  He  came  to  Chicago  December  29,  1897, 
with  a  car  load  of  stock,  arriving  at  the  Union  Stock  Yards  at 
four  o'clock  in  the  morning.  He  delivered  his  stock,  and  then 
fell  in  with  Timothy  Englehard,  who  was  in  the  habit  of  bring- 
ing patients  to  defendant,  and  receiving  some  compensation  for 
doing  so.  Englehard  took  Klepstoin  to  a  store,  and  persuaded 
him  to  be  measured  for  a  suit  of  clothes,  and  then  treated  him 
to  a  glass  of  beer,  after  which  they  went  down  town  on  a  street 
car.  On  the  way  Englehard  asked  Klepstoin  what  was  the  mat- 
ter with  him,  and  said  that  he  looked  sick,  to  which  Klepstoin 
replied  that  he  was  not  sick.  When  thoy  got  down  town,  JMigle- 
hard  assisted  in  getting  Klepstein's  pass  extended,  and  said  that 
he  had  to  go  to  defendant's  office  to  get  some  medicine  for  his 
baby.  He  persinidcd  Klepstein  to  go  into  the  office,  and  spoko 
to  defendant  about  medicine  for  his  baby,  and  then  introduced 
Klepstein,  and  said  that  he  looked  sick, — that  his  eyes  looked 
bad.  The  evidence  for  the  People  upon  which  defendant  was 
convicted  was  substantially  as  follows:  After  the  introduction, 
defendant  told  Kle])stein  that  he  looked  sick,  and  he  replied  that 
he  was  not  sick.  Defendant  said  that  he  was  a  professor,  and 
could  tell  when  people  were  sick,  but  could  not  tell  what  was 
the  matter  until  he  made  an  examination.  He  and  Englehard 
told  Klepstein  to  pull  off  his  overcoat,  and  Klepstein  threw  his 
shoulders  back,  and  they  took  it  off.  They  then  told  him  to  take 
off  his  other  coat  and  vest,  and  ])ull  down  his  suspenders,  and 
he  did  so.  Englehard  then  went  out  of  that  room,  and  defend- 
ant pulled  Klepstein's  shirt  up  ar(»und  his  neck.  Klepstein  laid 
down  on  the  examination  chair  and  defendant  made  a  jdiys- 
ical  examination,  and  told  him  that  he  had  heart  disease,  brain 
trouble,  and  piles.  After  the  examination,  Klepstein  got  up, 
and  put  on  his  clothes,  and  was  going  away,  but  defendant  said 
that  he  coiild  not  go  until  this  was  settled  for;  that  the  treat- 
ment had  already  begim,  and  would  have  to  be  settled  for.  De- 
fendant then  called  Englehard  back  into  the  office,  and  said 
that  he  and  Kle])stein  had  decided  on  everything  but  tho 
amount;  that  he  wanted  $150  to  treat  him,  one-half  in  cash,  and 


STEWARD  V.  PEOPLE. 


mitentiary. 
e  Lakeside 
near  Gro- 
f  20,  1897, 
k  Yards  at 
and  tlioji 
it  of  bring- 
nsation  fur 
persuaded 
reated  him 
on  a  strei't 
as  the  nuit- 
i  Klepstein 
•wn,  Kiigle- 
id  said  that 
ine  for  his 
and  spoko 
introd'.'u'ed 
?jos  looked 
Midant  was 
itroduction, 
•eplied  tliat 
fessor,  and 
I  what  was 
Eiigleliard 
I  threw  liis 
urn  to  take 
nders,  and 
nd  (h'fcnd- 
I)stein  laid 
le  a  phys- 
('ase,  brain 
in  got  np, 
ndant  said 
the  treat- 
I  for.     1)0- 
nnd  said 
X   but    tlio 
I  cash,  and 


503 


that  he  would  take  a  note  for  the  rest.  Klepstein  said  that  that 
was  more  money  than  he  had ;  that  he  only  had  a  little  money, — 
a  $50  draft.  Defendant  asked  to  see  the  draft,  and  Klepstein 
took  it  out.  Defendant  looked  at  it,  and  said  that  was  all  rijiiit. 
and  asked  him  to  indorse  it,  which  he  did.  Defendant  took  the 
draft,  and  filled  out  a  note  for  $150,  payable  in  sixty  days,  and 
indorsed  the  amount  of  the  draft,  $50,  as  a  payment  on  it. 
Klepstein  signed  the  note,  and  defendant  took  it  and  the  draft. 
Defendant  then  wrote  a  prescription,  and  they  all  went  down  to 
a  drug  store,  where  defendant  handed  the  prescription  to  a  clerk 
to  be  filled  for  Klepstein.  The  prescription  was  filled,  and  the 
package  was  handed  to  Klepstein,  who  paid  the  charge  of  $-3.75 
for  it.  Defendant  went  out,  and  Klepstein  complained  to  Engle- 
hard,  saying  that  he  was  not  sick,  and  did  not  need  the  medi- 
cine. Englehard  said  that  he  was  sorry  that  he  thought  as  he 
did,  and  proposed  to  go  back  to  the  doctor's  office,  and  see  if 
they  could  get  the  draft  back.  They  went  to  the  ':race,  and  Klep- 
stein said  that  he  was  not  sick,  and  would  give  defendant  $25 
if  he  would  give  the  note  and  draft  back.  The  defendant  was 
goingout  to  lunch,  and  said  he  had  no  time,  and  the  parties  all 
took  lunch  together  at  a  restaurant.  Defendilnt  left  the  restau- 
rant first,  and  after  he  left  Englehard  proposed  to  go  back  to 
defendant's  office,  and  see  if  they  could  not  get  the  draft  back. 
They  went  back  again,  but  defendant  refused  to  give  back  the 
draft.  The  next  day  Klepstein  went  again  with  a  friend,  and 
asked  for  the  note  and  draft,  and  offered  to  give  defendant  $25 
if  he  would  return  them.  lie  refused,  but  gave  him  the  note 
back,  tearing  off  the  signature,  and  keeping  the  draft.  Klep- 
stein was  examined  ten  days  later  by  another  physician,  who  did 
not  find  him  afflicted  with  the  diseases  defendant  claimed  ex- 
isted. A  thorough  examinaticm  developed  nothing  of  any  con- 
sequence in  the  way  of  disease,  but,  on  the  whole,  the  man  was 
in  good  condition  and  health.  Defendant  testified  that  the  con- 
tract was  entered  into  voluntarily.  The  evidence  as  to  the  char- 
acter of  defendant  and  his  re])utation  for  honesty  and  fair  deal- 
ing as  well  as  veracity  was  conflicting.  A  clerk  in  the  drug 
store  testified  that  Klepstein  told  him  about  the  arrangement 
for  treatment  with  the  doctor,  but  said  that  he  Avas  afraid  the 
doctor  would  not  cure  him,  and  that  his  wife  would  not  be 


if- Ml 


El  *   '' 
I 

: 


A 


€. 


m 


506 


AMERICAN  CRIMINAL  REPORTS. 


pleased  when  he  got  home.  Klepstein  admitted  that  at  the  time 
of  the  examination  ho  told  defendant  that  ho  would  deposit 
$200  if  he  wonld  make  him  as  strong  and  healthy  as  he  was 
when  he  was  seventeen  years  old,  but  defendant  said  that  he 
could  not  do  that. 

The  crime  of  larceny  always  includes  the  taking  and  con- 
version of  property  without  consent  of  the  owner.  It  involves 
a  trespass,  and  there  can  be  no  larceny  where  there  is  a  consent 
to  the  taking  of  the  property  with  the  intention  that  the  pos- 
session and  title  sholl  pass.  Where  the  owner  voluntarily  parts 
wuth  the  possession  and  title,  the  crime  of  larceny  is  not  com- 
mitted. If  defendant,  by  fraudulent  and  unfair  statements 
and  representations,  induced  Klepstein  to  voluntarily  part  with 
the  possession  and  title  of  the  draft,  intending  to  transfer  such 
possession  and  title  to  him,  there  could  be  no  larceny,  no  matter 
what  else  it  might  be.  Welsh  v.  People,  17  111.  339 ;  Sfinsou  r. 
People,  43  id.  397 ;  Johnson  v.  People,  113  id.  99.  There  is  no 
doubt  that  such  was  the  fact,  and  that  Klepstein  meant  to  part 
Avith  the  draft  absolutely,  and  to  transfer  the  title  to  defendant. 
The  only  claim  made  on  behalf  of  the  People  is  that  the  draft 
was  obtained  by  force  and  duress.  But  the  evidence  does  not 
sustain  this  claim.  Klepstein  indorsed  the  draft  after  the 
examination,  and  after  his  clothes  were  on,  and  his  supposed 
friend,  Englehard,  had  come  back  into  the  office.  There  was 
no  physical  force  whatever,  and  no  show  of  any.  Klepstein  tes- 
tified that  he  was  scared,  but  it  is  plain  that  he  had  no  reference 
to  duress,  physical  force,  or  threats  of  violence.  The  methods 
employed  were  disreputable,  and  Klepstein  Avas  overpersuaded 
and  induced  to  do  what  he  would  not  have  otherwise  done,  but 
it  was  not  from  any  restraint  or  apprehension  of  violence.  They 
told  him  that  he  was  sick,  and,  although  he  said  that  he  was  not, 
yet  he  aided  in  taking  off  his  overcoat,  and  took  off  his  other 
clothing  himself,  and  voluntarily  submitted  to  the  examina- 
tion. After  the  prescription  was  written,  he  accomi)anied  de- 
fendant to  the  drug  store,  where  the  prescription  was  fille<l,  and 
he  paid  for  it.  The  only  thing  that  is  called  a  threat  is  that 
defendant  said  that  he  must  settle  for  what  had  been  done,  but 
he  made  no  attempt  to  leave  the  office,  and  there  was  no  threat 
of  bodily  harm  or  injury,  and  no  compulsion  or  restraint  of  his 


DEAN  r.  STATE. 


567 


at  the  time 

lid  deposit 

as  he  was 

id  that  he 

and  con- 
It  involves 
3  a  consent 
fit  the  pos- 
arily  parts 
s  not  coni- 
statements 

part  with 
iisfor  such 

no  nijitter 
Sfmson  r. 
'here  is  no 
nt  to  part 
lofondiiiit. 
;  the  draft 
e  diios  not 

after  tlie 

suj)posed 
riiere  was 
pstein  tes- 

refcronco 
3  motliods 
persuaded 
done,  but 
ice.   They 
3  was  not, 
his  other 
exaniina- 
anied  de- 
illed,  and 
it  is  tliat 
done,  but 
no  threat 
nt  of  his 


liberty.  lie  told  the  clerk  at  the  drug  store  of  the  contract  be- 
tween him  and  the  doctor,  and  his  only  fear  then  was  that  the 
doctor  would  not  carry  out  his  agreement,  and  that  his  wife 
would  bo  displeased.  The  evidence  did  not  establish  the  crime 
of  larceny. 

The  judgment  is  reversed,  and  the  cause  is  remanded.    Re- 
versed and  remanded. 


Deax  v.  State. 

41  Fla.  291—26  So.  Rep.  638. 

Decided  May  16,  1899. 

Larceny:  Public  taking  under  claim  of  right — {Sentence. 

1.  In  all  cases  where  one  In  good  faith  takes  another's  property  under 

claim  of  title  in  himself  he  is  exemiit  from  the  charge  of  larceny, 
however  puerile  or  mistaken  the  claim  may  in  iai  t  l)e.  And  the 
same  Is  true  where  the  taking  is  on  behalf  of  another,  believed 
to  be  the  true  owner.  Still,  if  the  claim  is  dishonest, — a  mere 
pretense, — It  will  not  protect  the  taker. 

2.  In  charges  of  larceny,  where  the  taking  is  open,  and  there  is  no 

subsequent  attempt  to  conceal  the  property,  and  no  denial,  but 
an  avowal,  of  the  taking,  a  strong  presumption  arises  that  there 
was  no  felonious  intent,  which  must  be  repelled  by  clear  and  con- 
vincing evidence  befoie  a  conviction  Is  authorized. 

3.  Under  the  provisions  of  chapter  4026,  act  of  1891,  where  the  pri- 

mary penalty  imposed  for  crime  is  a  fine  and  the  costs  of  prose- 
cution only,  the  imprisonment  for  non-payment  of  such  fine  and 
costs  should  be  in  the  county  jail,  instead  of  the  State  peniten- 
tiary. 

(Syllabus  by  the  Court.) 

Error  to  the  Circuit  Court  of  Jackson  County. 
!^[oso  Dean,  being  convicted  of  larceny,  brings  error.     Kc- 
vcrsed. 

John  11.  Carter,  for  the  plaintiff  in  error. 

The  Attorney-General,  for  the  defendant  in  error. 

Taylor,  C.  J.  At  the  spring  term,  189S,  of  the  circuit  court 
of  Jackson  county,  the  plaintiff  in  error  was  convicted  of  the 
crime  of  larceny  of  an  ox,  and  was  sentenced  to  pay  a  fine  of  one 
hundred  and  fifty  dollars  and  costs,  and,  in  default  in  the  pay- 


!i:iii: 


\i\ 


568 


AMERICAN  CRIMINAL  REPORTS. 


■yf 


ment  thereof^  that  lie  be  confined  at  hard  labor  in  the  State  peni- 
tentiary for  the  period  of  six  months.  A  reversal  of  this  judg- 
ment is  sought  by  writ  of  error. 

Tlie  only  error  assigned  and  urged  is  that  the  evidence  was 
not  sutKcient  to  sustain  a  conviction.  The  defense  set  up  was 
that  the  ox  alleged  to  have  been  stolen  was  not  taken  with  the 
aiiimo  furaiuU  necessary  to  the  crime  of  larceny,  but  was  taken 
with  a  bona  fide  belief  on  the  part  of  the  defendant  that  the  ox 
belonged  to  him,  and  that  he  had  a  right  to  take  it.  Some  of  the 
testimony  for  the  State,  and  the  evidence  for  the  defendant, 
tended  strongly  to  sustain  such  defense.  It  showed  that  the  de- 
fendant took  the  ox  about  midday,  openly,  in  the  presence  of 
several  persons,  whose  assistance  he  procured  in  capturing  it, 
asserting  at  the  time  that  the  animal  was  his  property,  and  that 
he  led  it  off  on  the  public  highway  to  his  home  in  the  neighbor- 
hood; that  he  sold  it  shortly  afterwards  to  another  party  in  the 
same  neigborhood,  and  the  party  to  whom  he  sold  it  worked  and 
drove  it  around  in  the  neighborhood  where  the  prosecuting  and 
alleged  owner  lived,  frequently  driving  it  to  a  small  town,  whore 
the  prosecuting  and  alleged  owner  had  his  home.  Several  wit- 
nesses, and  the  defendant  himself,  swear  ]K)sitively  that  the  ani- 
mal belonged  to  the  defendant;  that  he  had  raised  it  from  a  calf, 
and  still  owned  its  mother.  The  alleged  owner  and  prosecuting 
witness  testified  simply  that  the  animal  belonged  to  him;  that 
he  had  missed  it  for  about  a  year,  and  that  when  it  voluntarily 
came  up  to  his  place  it  had  a  l)ell  on,  and  that  one  of  his  em- 
ployees turned  it  into  his  inclosure;  that  shortly  afterwards  the 
defendant's  wife  and  several  other  parties  came  to  his  ])hice, 
and,  after  looking  at  the  animal  in  his  pasture,  laid  claim  to  the 
ox  as  being  the  property  of  the  defendant.  The  bell  that  the 
animal  had  on  when  it  came  up  to  the  prosecutor's  jylace  was 
shown  to  belong  to  the  party  to  whom  the  defendant  bad  sold  the 
ox.  There  Avas  no  evidence  t'Miding  to  show  any  concealment  on 
the  part  cf  the  defendant  either  of  the  fact  of  his  having  taken 
the  ox,  or  of  his  assertion  of  ownership  thereof,  or  of  the  iad  of 
his  having  sold  it  to  the  third  party  to  whom  he  did  sell  it;  and 
there  was  nothing  to  show  any  alteration  or  obliteration  of  the 
animal's  marks,  though  there  was  testimony  to  show  that  the  ox 
was  in  the  mark  of  the  prosecutor,  and  not  in  that  of  the  defend- 


w 


DEAN  1-.  STATE. 


5G9 


State  pcni- 
t"  this  judg- 

idenee  was 
sot  up  was 
n  with  tlio 

was  taken 

hat  the  ox 
oiiie  of  the 
dt'fondaiit, 

lat  the  de- 
•rosenee  of 
itiiring  it, 
',  and  that 
I  neighhor- 
irty  in  the 
orkod  and 
'nting  and 
wn,  where 
n-eral  wit- 
at  tlie  ani- 
■om  a  calf, 
I'oseentinff 
liiin;  tliat 
ohmtarily 
)f  his  cm- 
wards  tlio 
his  ])hi('e, 
lini  to  the 

I  that  the 
phice  was 
J  sold  the 
ilnient  on 
ing  taken 
10  faot  of 

II  it;  and 
m  of  the 
at  tlio  ox 
'  defend- 


ant. There  was  testimony  also  to  show  that  the  defendant,  after 
the  ox  had  been  taken  possession  of  by  the  prosecuting  witness, 
applied  to  a  justice  of  the  peace  for  process  to  recover  possossiou 
of  the  animal  from  the  prosecuting  witness. 

The  rule,  as  laid  down  in  2  Bish.  Cr.  Law,  §  851,  and  approv- 
ingly cited  in  Baker  v.  State,  17  Fla.  40G,  and  in  Charles  v. 
State,  3G  Fla.  G91,  18  So.  Rep.  3G9,  is  that  "in  all  cases  where 
one  in  good  faith  takes  another's  property  under  claim  of  title 
in  himself,  he  is  exempt  from  the  charge  of  larceny,  howcner 
puerile  or  mistaken  the  claim  may  in  fact  be.  And  the  saine  is 
true  where  the  taking  is  on  behalf  of  another,  believed  to  be  the 
true  uwiior.  Still,  if  the  claim  is  dishonest, — a  mere  pretense, — 
it  will  not  protect  the  taker."  And  in  Baker  v.  State,  supra, 
this  court  said:  "The  gist  of  the  offciise  is  the  intent  to  deprive 
another  of  his  property  in  a  chattel,  either  for  gain,  or  out  of 
wantonness  or  malice  to  deprive  another  of  his  right  in  the 
thing  taken.  This  cannot  b*^  where  the  taker  honestly  believes 
the  property  is  his  own,  or  that  of  another,  and  that  he  has  a 
right  to  take  possession  of  it  for  himself  or  for  another,  for  the 
protection  of  the  latter."  Another  rule,  clearly  and  correctly 
laid  down,  as  we  think,  in  McMuUen  r.  State,  53  Ala.  531,  is 
that,  'Svhere  the  taking  is  open,  and  there  is  no  subsequent  at- 
tempt to  conceal  the  property,  and  no  denial,  but  an  avowal,  of 
the  taking,  a  strong  presumption  arises  that  there  was  no  feloni- 
ous intent,  which  must  be  repelled  by  clear  and  convincing  evi- 
dence before  a  conviction  is  authorized."  Applying  these  prin- 
ciples to  the  facts  as  disclosed  by  the  record  in  this  case,  we 
think  that  the  ends  of  iustice  will  best  be  subserved  bv  the  2:rant 
of  another  trial  to  the  defendant,  as,  in  our  judgment,  the  evi- 
dence gives  rise  to  a  strongly  reasonable  doubt  as  to  the  presence 
in  the  case  of  that  intent  to  steal  that  is  necessary  to  make  out 
larceny. 

It  is  proper  for  us  to  point  out  another  error  in  the  sentence 
imposed,  though  it  has  not  been  assigned  as  error,  and  no  notice 
of  it  is  taken  in  the  briefs  of  counsel.  The  primary  penalty  im- 
posed here  was  a  money  fine  and  the  costs  of  prosecution,  but,  in 
case  of  default  in  the  payment  of  such  fine  and  costs,  the  defend- 
ant was  soiitoncod  to  imprisonment  in  the  State  penitentiary. 
This  court  has  repeatedly  held  that  under  the  provisions  of 


S  ;■  :•,  i 


vm 


's; 


570 


AMERICAN  CRIMINAL  REPORTS. 


chapter  4020,  act  of  1891,  where  the  primary  punishment  im- 
posed was  a  fine  and  costs  of  prosecution  only,  the  court  should 
fix  a  period  of  imprisonment  in  the  county  jail,  instead  of  in 
the  State  penitentiary,  for  nonpayment  of  such  fine  and  costs. 
Ihicno  V,  State,  40  Fla.  IGO,  23  So.  Kep.  862;  Egrjart  v.  State, 
40  Fla.  527,  25  So.  Rep.  144. 

The  judgment  of  the  court  hclow  is  reversed,  and  a  new  trial 
awarded  to  the  defendant. 

Note. — Possession  of  stolen  property — Sufficient  for  the  defendant 
to  raise  a  reasonable  doubt  as  to  his  possession  of  it  being  felonious. — 
In  the  late  case  of  State  v.  Miner,  107  Iowa,  656  (1899),  one  instruc- 
tion was  that  if  the  jury  was  satisfied  beyond  a  reasonable  doubt  that 
the  prosecutor  was  the  owner  of  the  property  charged  to  have  been 
stolen;  that  it  was  stolen,  etc.;  and  further,  that,  soon  after  the  theft 
of  it,  this  identical  property  was  found  in  the  possession  of  the  defend- 
ant,— then  this  would  be  presumptive  evidence  that  the  defendant  was 
the  thief,  and  that  he  was  guilty  of  the  charge  made  against  him, — 
"unless  the  defendant  has  explained  to  your  satisfaction  his  possession 
of  the  property,  and  that  he  came  by  it  honestly."  It  was  held  that 
this  instruction  was  faulty,  because  it  was  violative  of  the  principle 
that  the  defendant  is  not  required  to  explain  to  the  satisfaction  of  the 
jury  that  his  possession  was  honestly  obtained,  but  that  it  is  sufficient 
if  his  explanation  raises  a  reasonable  doubt  as  to  whether  the  property 
was  honestly  obtained.    Citing  74  Iowa,  561;  72  Iowa,  500;  65  Iowa,  240. 

Counsel  for  the  State  objected  to  reviewing  this  instruction,  because 
appellant's  aV  jtract  did  not  show  that  all  of  the  evidence  was  before 
the  court.  It  was  held  that  this  objection  was  not  sufficient  to  put  In 
issue  the  correctness  of  the  abstract;  but  that,  further,  the  instruction 
stated  a  principle  of  law  that  could  be  considered  abstractly,  as  well 
as  when  applied  to  facts. 


'P«'; 


State  v.  Koeenee. 

8  N.  Dak.  292—78  N,  W.  Rep.  981. 

Decided  April  29,  1899. 

Larceny:   Intoxication  bearing  on  the  question  of  intent. 

1.  Voluntary  intoxication  of  a  defendant  is  never  to  be  considered 

by  the  jury  for  the  purpose  of  justifying  or  excusing  the  commis- 
sion of  a  crime  which  has  in  fact  been  committed. 

2.  Section  6815,  Rev.  Codes,  which  provides  that  the  intoxication  of 

one  accused  of  crime  may  be  considered  by  the  jiiry  in  determin- 
ing the  particular  purpose,  motive,  or  intent  with  which  the  acts 


'shment  im- 
ourt  should 
istead  of  in 
and  costs. 
irt  V.  State, 

a  new  trial 


e  defendant 

felonious. — 

one  instruc- 

e  doubt  that 

0  have  been 
ter  the  theft 

1  the  defend- 
fendant  was 
ainst  him, — 
s  possession 
IS  held  that 
he  principle 
ction  of  the 
is  sufficient 

the  property 
•5  Iowa,  210. 
ion,  because 

was  before 
at  to  put  In 

instruction 
tly,  as  well 


tent. 

considered 
tie  commls- 

ficatlon  of 
I  determln- 
h  the  acts 


STATE  V.  KOERNER. 


671 


were  committed,  when  such  purpose,  motive  or  Intent  Is  neces- 
sary to  constitute  a  particular  species  or  degree  of  crime,  con- 
strued, and  held,  that  larceny,  which  is  a  crime  requiring  the  ex- 
istence of  the  specific  intent  to  deprive  another  of  the  property 
taken  to  constitute  the  crime,  is  Included  thereunder,  and  that 
the  intoxicated  condition  of  the  defendant  may  be  shown,  to  be 
considered  by  the  Jury  for  the  purpose  of  determining  whether 
this  intent  actually  existed. 

3.  The  defendant,  as  for  a  defense,  offered  to  show  his  intoxicated 

condition  at  and  Just  prior  to  the  commission  of  the  alleged  lar- 
ceny, as  bearing  upon  the  existence  of  the  intent.  Held,  that  the 
rejection  of  the  evidence  was  error. 

4.  Held,  further,  that  the  purpose  of  the  admission  of  this  class  of 

evidence  is  not  to  Justify  or  excuse  the  crime,  but  to  aid  the  jury 
in  determining  whether,  in  fact,  the  crime  has  been  committed. 
(Syllabus  by  the  Court.) 

Appeal  from  District  Court  cf  Cass  County;  lion.  Charles 
II.  Pollock,  Judge. 

Joseph  Koerncr,  being  convicted  of  larceny,  appeals.  Ke- 
vcrscd. 

A .  T.  Cole,  for  the  appellant. 

Fvcd  B.  Morrill,  State's  Atty.,  for  the  State. 

YoL'xfi,  J.  The  defendant  was  tried  and  convicted  of  the 
crime  of  grand  larceny  in  the  district  court  of  Cass  county  at 
the  November,  1S98,  term.  Thereafter  a  motion  for  a  new  trial 
was  made  on  his  behalf.  This  was  denied,  and  on  December  6, 
IStiS,  he  was  sentenced  to  one  year  in  the  State  penitentiary. 

This  appeal  is  based  entirely  upon  errors  of  law.  While  the 
specifications  of  error  are  several  in  number,  v.e  need  not  treat 
them  separately  in  this  opinion  ;  for  they  are  either  rendered  un- 
important, or  are  determined,  by  the  conclusion  which  we  have 
reached  as  to  the  one  error  of  the  trial  court  in  entirely  exclud- 
ing all  evidence  offered  by  the  defendant  to  show  his  intoxicated 
condition  at  the  time  of  the  aliened  offense.  At  the  close  of  the 
State's  case  this  offer  of  testimony  was  made :  "The  defendant 
now  offers,  as  his  defense  in  this  action,  to  show  by  competent 
witnesses  that  he  had  been  under  the  influence  of  intoxicating 
liquors  for  a  number  of  days  just  prior  to  the  commission  of  the 
alleged  offense,  and  was  at  that  time,  and  had  been  so  at  the 
time,  and  was  at  that  time,  in  a  condition  not  to  know  what  he 


P  V  I. 


m 


I 


il 


■!> 


liiV 


:t  -j^r^ 


I 


irr 


^if 


kl 


■■•* 


it 


572 


AMERICAN  CRIMINAL  REPORTS. 


was  doing,  or  to  have  control  of  liis  will,  and  that  he  was  in- 
capable of  forming  or  executing  an  intent  to  commit  any  crime 
whatsoever,  by  reason  of  his  condition  at  that  time  from  intoxi- 
cation, and  from  his  general  condition  from  the  effects  of  previ- 
ous intoxication."  This  offer  was  rejected  by  the  court,  upon 
objection  -of  the  State's  attornoy,  made  on  the  ground  thnt, 
''under  the  laws  of  this  State,  intoxication  is  no  excuse  for  the 
commission  of  a  crime,  under  section  G81.5,  Rev.  Codes."  It 
appears  elsewhere  in  the  record  that  defendant's  intoxicated 
condition  had  extended  over  a  period  of  not  more  than  six  days. 
It  was  plainly  a  case  of  voluntary  intoxication,  and  not  insanity 
resulting  from  long-continued  and  excessive  indulgence  in  in- 
toxicatiilg  liquors,  which  is  a  condition  always  distinguishable 
from  voluntary  intoxication.  The  court's  refusal  to  receive  this 
testimony  is  assigned  as  error.  The  manner  of  the  offer  of  testi- 
mony by  the  defendant  is  treated  by  counsel  for  the  State  as 
sufficient,  and  it  will  be  so  considered,  without  expressing  an 
opinion  upon  that  point.  We  feel  that  we  should  also  disregard 
the  language  of  the  offer,  so  far  as  it  appears  to  restrict  it  to 
the  one  purpose  of  showing  incapacity  to  form  an  intent,  and 
treat  it,  as  counsel  for  the  State  has  done,  both  in  his  oral  argu- 
ment and  brief,  as  presenting  for  our  determination  the  broa(h'r 
question  whether,  in  a  larceny  case,  the  defendant  has  a  right  to 
offer  evidence  to  show  his  intoxicated  condition  at  the  time  of 
the  commission  of  the  acts,  as  bearing  upon  the  existence  of  the 
element  of  intent.  If  such  evidence  is  admissible  for  that  pur- 
pose, to  aid  in  establishing  a  defense  to  the  crime  charged,  it 
should  not  have  been  excluded  because  counsel,  in  his  offer,  in- 
advertently indicated  as  its  purpose  a  result  Avhich  may  lie  in 
excess  of  the  legal  effect  of  the  evidence  proposed  to  be  intro- 
duced. 

The  legislature  of  this  State  has  by  express  enactment  de- 
clared when  and  for  what  purpose  the  intoxicated  condition  of 
one  on  trial  for  the  commission  of  a  crime  may  be  interposed  as 
a  defense,  and  considered  by  the  jury.  Section  OS  1.5,  Rov. 
Codes,  reads  as  follows:  "Xo  act  committed  by  a  person  Avhile 
in  a  state  of  voluntary  intoxication  shall  be  deemed  less  criminal 
by  reason  of  his  having  been  in  such  condition.  But  whenever 
the  actual  existence  of  any  particidar  purpose,  motive  or  intent 


1  ^mm 


STATE  V.  KOERNEIl. 


5T3 


;  he  was  in- 
t  any  crime 
from  intoxi- 
ets  of  prcvi- 
eoiirt,  updii 
round   tlmt, 
cuse  for  tlie 
Codos."     It 
intoxicated 
EJn  six  days, 
lot  insanity 
■enee  in  in- 
ingnisliahlo 
receive  this 
Ter  of  testi- 
le  State  as 
dressing  an 
0  disreoard 
'Strict  it  to 
intent,  and 
i  oral  arpii- 
;he  broader 
3  a  riijlit  to 
he  time  of 
}nce  of  the 
r  that  pur- 
?harf?od,  it 
s  offer,  in- 
may  lio  in 
)  be  intro- 

■tment  de- 
ndition  of 
?rpoao(l  as 
515,  Rpv. 
'son  while 
5  criminal 
whenever 
or  intent 


is  a  necessary  element  to  constitute  any  particular  species  or  de- 
gree of  crime,  the  jury  nuiy  take  into  consideration  the  fact  that 
the  accused  was  intoxicated  at  the  time,  in  determining  the  pur- 
])ose,  motive  cr  intent  with  which  he  coimnitted  the  act."  The 
first  portion  of  the  section  just  quoted,  which  in  etl'eet  declares 
that  acts  which  are  criminal  when  done  by  a  sober  person  are 
just  as  criminal  when  done  by  one  in  a  state  of  voluntary  intox- 
ication, is  merely  the  adoption  by  the  legislature  of  the  uniform 
doctrine  of  the  courts  that  voluntary  intoxication  is  never  u 
justification  or  excuse  for  the  commission  of  a  crime.  It  is  evi- 
dent, then,  that  if  the  defendant  did  in  fact  commit  the  crime 
with  which  he  was  charged,  his  intoxicated  condition  would  n<»t 
avail,  either  to  justify  or  excuse  him.  This  his  counsel  very 
properly  concedes.  But  it  is  urged  that  the  crime  was  not  com- 
mitted, that  the  larceny  was  not  com])lete  without  the  intent, 
and  that  the  testimony  offered  should  have  bi-en  received,  and 
submitted  to  the  jury,  to  be  weighed  by  thein  in  determining 
whether  or  not  the  necessary  intent  existed.  The  statute  does 
not  make  evidence  of  intoxication  generally  admissible  and  for 
all  purposes.  The  language  used  plainly  indicates  that  the  leg- 
islature had  in  mind  distinct  classes  of  crimes,  and  intended  to 
limit  the  admission  of  such  evidence  thereto,  and  for  the  purpose 
expressed,  namely,  to  those  crimes  wdiose  species  or  degree  de- 
pend upon  the  existence  of  a  particular  jmrpose,  motive,  or  in- 
tent as  an  essential  element  thereof,  and  for  the  purpose  of  de- 
termining the  intent  with  which  the  acts  were  conmiitted.  The 
admissibility  of  the  evidence  of  defendant's  intoxication  in  this 
case  depends,  then,  entirely  \ipon  whether  larceny  comes  within 
this  classification.  Homicide  plainly  does.  In  such  a  case  evi- 
dence of  intoxication  is  admitted,  never  to  excuse  tlie  homicide, 
but  to  assist  the  jury  in  finding  the  presence  or  absence  of  the 
particular  intent  Mhich  marks  the  particular  degree.  Likewise 
in  burglary  it  is  admissible,  not  to  justify  the  acts  of  breaking 
and  entering,  but  to  throw  light  upon  the  additional  element, 
the  intent  to  commit  some  other  crime,  which  is  the  particular 
element  necessary  to  constitute  this  species  of  crime.  In  neither 
case,  nor  in  any  case  within  the  classification  made  by  the  stat- 
ute, is  the  evidence  either  admitted  or  considered  for  the  pur- 
pose of  justifying  or  excusing  the  crime,  but  for  the  sole  pur- 


m  i\ 


:V 


674 


AMERICAN  CRIMINAL  REPORTS. 


pose  of  dctennining  wlictlior,  in  fact,  the  particular  species  or 
degree  of  prime  has  been  eoniniitted. 

Are  the  elements  of  larceny  such  as  to  bring  it  also  within  the 
elasa  of  crimes  permitting  the  consideration  of  evidence  of  in- 
toxication for  the  purpose  of  determining  the  intent  with  which 
the  acts  are  committed  ?  Our  answer  nuist  bo  in  the  affirma- 
tive, and  our  conclusion  is  that  the  exclusion  of  the  evidence  of 
(Ic'fen<lant's  intoxicated  condition  by  the  trial  court,  Avhen  con- 
sidered as  offered  as  a  defense  to  the  crime  with  which  he  was 
cluirged,  was  error.  In  reaching  this  result  the  fact  that  larceny 
is  divided  into  degrees  has  no  weight,  for  its  degrees  depend 
wholly  u]ion  the  value  of  the  property  taken.  Our  conclusion 
that  it  is  included  is  based  upon  the  statutory  definition  of  lar- 
ceny, which  nnikes  the  intent  to  deprive  another  of  the  property 
taken,  a  particular  and  essential  element  to  constitute  the  crime, 
without  which  it  does  not  exist,  as  well  as  upon  the  uniform 
classification  of  larceny,  by  text-writers  and  courts,  as  a  crime 
requiring  a  specific  or  particular  intent.  1  Wlifirt.  Cr.  ]^aw, 
§§  51-53,  883;  1  McClain,  Cr.  Law,  §  IGl ;  Bish.  Cr.  Law 
(Ith  ed.),  §  490;  Mason  r.  State,  32  Ark.  238.  In  State  v. 
Welch,  21  !Minn.  2G,  the  court  said:  "In  a  prosecution  for  lar- 
ceny, the  act  of  the  prisoner,  the  mere  taking,  does  not  constitute 
the  offense,  but  the  act  coupled  with  the  intent  to  steal ;  and  the 
question  is  not,  did  the  prisoner  intend  to  take  the  goods  ?  but, 
did  he  take  them  anhno  furandi?"  In  People  v.  Watl-er,  38 
^rich.  15G,  a  larceny  ease,  the  verdict  was  set  aside  for  error  in 
charging  the  jury  as  follows:  "Even  if  the  jury  should  believe 
that  the  defendant  was  intoxicated  to  such  an  extent  as  to  make 
him  unconscious  of  what  he  was  aoing  at  the  time  of  the  com- 
mission of  the  alleged  offense,  it  is  no  excuse  for  him,  and  they 
should  not  take  it  into  consideration.  A  man  who  voluntarily 
puts  himself  in  condition  to  have  no  control  of  his  actions  mu-^t 
be  held  to  intend  the  conscquenees."  Cooley,  J.,  said:  "This 
charge  Avas  given  in  reliance  upon  the  general  principle  that 
drunkenness  is  no  excuse  for  crime.  While  it  is  true  that  drunk- 
enness cannot  excuse  crime,  it  is  equally  true  that,  when  a  cer- 
tain intent  is  a  nece?sarv  element  in  a  crime,  the  crime  cannot 
have  been  committed  when  the  intent  did  not  exist.  In  larceny 
the  crime  does  not  consist  in  the  wrongful  taking  of  the  prop- 


flp 


STATE  r.  KOERNER. 


575 


inr  spcciea  or 

Uo  within  the 
iilencG  of  iii- 
it  with  which 
I  the  nffirmn- 
e  evidence  of 
it,  when  con- 
vhich  he  was 
t  that  larceny 
levees  depend 
ir  conclnsion 
nit  ion  of  lar- 
tho  property 
te  the  crime, 
the  uniform 
i,  as  a  crime 
rt.  Cr.  Law, 
sh.  Cr.  Law 
In  Stale  v. 
it  ion  for  lar- 
ot  constitute 
eal ;  and  the 
goods?  but, 
Wall-er,  ,']8 
for  error  in 
ould  believe 
t  as  to  make 
of  the  eom- 
m,  and  thoy 
voluntarily 
ictions  mu^t 
in  id:    'Thi. 
ineiple  that 
that  driink- 
when  a  cer- 
nme  cannot 
In  lareenv 


f  the 


prop- 


erty, for  that  might  be  a  mere  trespass,  but  it  consists  in  the 
wrongful  taking  with  felonious  intent;  and  if  the  iJefcndant,  tor 
any  reason  whatever,  indulged  no  such  intent,  the  crime  has  nut 
been  connuitted."  In  Chatham  v.  State,  92  Ala.  47,  0  So.  Kcp. 
007,  another  larceny  case,  the  court  said:  "When  the  oIlViisu 
consists  of  an  act  committed  with  a  particular  intent,  wlnii  a 
specific  intent  is  of  the  essence  of  the  crime,  drunkenness,  as  af- 
fecting the  mental  state  of  the  accus(>d,  becomes  a  pro))cr  sub- 
ject to  be  considered  by  the  jury  in  deciding  the  question  of  in- 
tent." M'ood  V.  Stale,  3-1  Ark.  341,  also  a  larceny  case,  is  in 
full  accord  with  the  cases  just  cited.  See,  also,  Ulale  v.  Bell, 
2D  Jowa,  31S;  Slate  v.  SchiiKjen,  20  Wis.  7!);  Pujmon  v.  Slate, 
U  Ohio,  4GiJ ;  Lytic  v.  State,  31  Ohio  St.  190.  The  only  State, 
so  far  as  we  can  ascertain,  which  has  excluded  the  evidence  (jf 
a  defendant's  intoxication  in  larceny  cases,  is  Indiana.  O'Her- 
rin  V.  Slate,  14  Ind.  420,  and  Dawson  v.  Slate,  10  Ind.  420,  are 
against  the  admission  of  such  evidence.  The  later  case  of  liailetj 
r.  Stale,  20  Ind.  422,  however,  held  such  evidence  competent, 
as  tending  to  show  whether  the  defendant  was  in  a  mental  con- 
dition so  as  to  be  able  to  commit  the  crime.  And  still  later,  in 
lingers  v.  State,  33  Ind.  543,  that  court  reversed  the  lower  court 
for  refusing  to  admit  evidence  to  show  that  the  defendant,  who 
Avas  addicted  to  the  use  of  opium,  had  at  the  time  of  the  otfense 
been  deprived  of  his  accustomed  supply  of  the  drug,  upon  the 
ground  that  the  evidence  went  to  show  his  mental  condition,  ami 
bore  upon  the  existence  of  the  intent.  This  case  is  cited  by 
Chatham  v.  State,  92  Ala.  47,  9  So.  Rep.  007,  in  support  of  the 
admissibility  of  evidence  of  intoxication  in  larceny  cases.  In 
the  latter  ease  the  court  said:  "When  the  offense  consists  of  an 
act  committed  with  a  particular  intent,  when  a  specific  intent  is 
of  the  essence  of  the  crime,  drunkenness,  as  affecting  the  mental 
state  and  condition  of  the  accused,  becomes  a  proper  subject  to 
be  considered  by  the  jury  in  deciding  the  question  of  inteut. 
.  .  .  The  decided  weight  of  authority  sustains  the  doctrine 
that  evidence  of  the  condition  of  the  accused,  though  caused  by 
voluntary  drunkenness,  is  receivable,  and  may  be  considered  by 
the  jury  in  determining  the  question  of  intent."  If  the  prop- 
erty taken  is  not  taken  with  the  intent  to  deprive  another 
thereof,  the  crime  of  larceny  has  not  been  committed,  and  the 


I'*  i 


Hi 


i  \i 


t     '1' 

Ik 


l|, 


I  1 


m 


• 


lil 


I  V 

i 


.-iiii 


676 


AMERICAN  CRIMINAL  REPORTa 


existence  of  this  intent  id  nlwnys  for  the  jury  to  dctorniino. 
There  is  no  dogroc  of  intoxiciition,  however  grent,  which,  of  it- 
self, is  rccnj^nizetl  us  ronch-ring  one  h'gally  incapahle  of  furniing 
a  eriniinal  intent.  I]\it  there  may  l)e  u  mental  condition  amount- 
ing to  a  species  (jf  insanity,  superinduced  by  long  and  excessive 
use  of  intoxicating  li(piors,  which  amounts  to  a  legal  incapacity 
to  commit  crime.  In  such  a  case  the  jury  passes  upon  the  ex- 
istt  nee  <if  that  condition,  and,  if  the  condition  exists  wherein  the 
accused  is  legally  irresponsible,  the  law  holds  him  guiltless  of 
crinu!. 

From  an  application  of  n  familiar  principle  that  every  person 
is  presumed  to  intend  to  do  that  which  he  doc^s  do,  and  also  to 
intend  the  natural  consequences  of  his  acts,  juries  very  naturally 
and  usually  do  infer,  from  the  acts  entering  into  the  crime  of 
larceny  and  the  manner  of  their  conniiission,  the  intent  to  de- 
prive another  of  the  property  taken ;  but  this  is  by  no  m(>anfl  a 
necessary  inference,  for  the  intent  accompanying  the  acts  may 
be  entirely  wanting,  or  in  itself  an  innocent  one.  For  instance, 
the  projjcrty  may  be  taken  with  an  intent  to  return  it,  or  be 
taken  by  mistake,  or  some  intent  other  than  to  deprive  the  owner 
thereof,  in  which  case  larceny  has  not,  of  c(mrse,  been  coniniit- 
ted.  The  intent  to  steal  does  not  follow  the  act  of  taking  as  a 
legal  and  conclusive  presumption;  and  we  may  add  that  the  net 
of  the  legislature,  in  admitting  this  class  of  evidence  in  particu- 
lar cases  where  intent  is  peculiarly  the  gist  of  the  crime  or 
degree,  is  not  an  arbitrary  exercise  of  power,  for  it  rests  on  the 
imderlying  principle  that  the  ultimate  object  of  judicial  inquiry 
in  every  criminal  prosecution  is  to  determine  whether  a  crime 
has  been  committed,  and  to  ascertain  the  guilt  or  innocence  of 
the  accused.  And  it  would  seem  to  us  equally  justifiable  in 
])rinciple  to  prohibit  a  jury  from  considering  evidence  of  a  de- 
fendant's physical  condition,  where  it  amounted  to  partial  or 
conjplete  paralysis  of  his  physical  powers,  and  is  olfered  as  bear- 
ing upon  the  question  whether  the  physical  acts  included  in  the 
crime  were  committed,  as  to  exclude  from  their  consideration 
his  intoxicated  condition,  as  bearing  upon  the  existence  in  his 
mind  of  the  intent  to  steal,  in  view  of  the  fact  that  the  well- 
known  effect  of  intoxication  upon  the  mind  is  to  impair  the  nor- 
mal condition  of  the  mental  machinery  in  varying  degrees,  and 


CADY  V.  STATE 


577 


)  <lpt('i'iniiio. 
wliicli,  of  it- 
?  of  forining 
i'uni  aiiioinit- 
lui  excossivo 
il  iiu'iipacity 
ipon  tlio  cx- 
wlii'rein  tlic 
guiltl('s^^  of 

}vcry  person 
niul  also  to 
rv  nntn rally 
ho  crime  of 
11  tent  to  (le- 
no  means  a 
lie  acts  iniiy 
or  instance, 
rn  it,  or  be 
•e  the  owner 
pen  coinniit- 
takinj?  as  a 
that  the  act 
'  in  particn- 
le  crime  or 
rests  on  the 
'ial  in(]iiirv 
icr  a  crime 
inoceiice  of 
istifiable  in 
ice  of  a  (le- 
»  partial  or 
red  as  bear- 
nded  in  the 
nsi  deration 
enco  in  liis 
it  the  well- 
air  the  nor- 
egroes,  and 


to  prodncc,  in  sonic  cases  of  long-cdntimicd  and  excessive  uso 
of  intoxicating  liqnors,  such  a  condition  of  mind  as  t<i  amoniit 
to  legal  incapacity.  The  admission  of  evidence  of  intoxication 
in  tlu'  cases  coming  within  the  statute  is  solely  for  the  purjiost! 
of  determining  whether,  in  fact,  the  species  or  degree  of  crime 
charged  lias  been  committed,  and  should  always  be  so  restricted 
by  proper  instructions,  and  never  be  considered  by  the  jury  to 
justify  or  excuse  crimes  which  have  been  committed.  For  the 
reasons  stated,  the  order  of  the  district  court  ia  reversed,  and  a 
new  trial  granted.    All  concur. 


Cady  v.  State. 


39  Tex.  Crim.  Rep.  236—45  S.  W.  Ren.  568. 

Decided  April  27,  1898. 

Larceny;   Horse  theft — Drunkenness— Intent — Instructions. 

1.  Whether  Induced  by  Intoxication  or  other  causes,  "Insanity  has  a 

distinct  meaning."     Mere  drunkenness  is  not  insanity. 

2.  If  the  proi^erty  be  talten  when  the  defendant  was  in  such  a  mental 

condition  that  he  did  not  Itnow  what  he  was  doing,  a  subsequent 
appropriation  of  it  will  not  be  tbeft. 

Appeal  from  the  District  Court  of  Falls  County ;  Hon.  L.  R 
Cftbb,  Judge. 

The  defendant,  being  convicted  of  the  larceny  of  a  horse  and 
sentenced  to  three  years'  imprisonment  in  the  penitentiary,  ap- 
peals.   Reversed. 

Eice  &  Bartlett,  J.  J.  Swann,  and  George  H.  Carter,  for  the 
appellant. 

W.  W.  Walling  and  Mann  Trice,  Asst.  Atty.  Gen.,  for  the 
State. 

irKNDERsoN,  J.  Appellant  was  convicted  of  the  theft  of  a 
horse,  and  his  punishment  assessed  at  three  years'  confinement 
in  the  penitentiary ;  hence  this  appeal. 

The  evidence  is  uncontroverted  that  appellant  took  the  horse, 
Avhich  was  hitched  in  a  public  place  in  ^larlin.  He  rode  said 
horse  out  of  town  in  broad  daylight,  and  crossed"  the  river,  and 
Vol.  XI  — 37 


|.l 


.'l 


0(! 


AMERICAN  CRIMINAL  REPORTS. 


m 


i  I 


Avoiit  to  William  Wlieolis',  in  the  neighborhood  of  Lott.     lie 
Pto])])^!  at  Whoelis',  and  hired  to  him  to  pick  cotton.     After 
he  had   r(>niainod  there  about  a  week,  he  sold  the  horse  to 
"Whoelis.    In  about  two  weeks  after  the  taking  of  said  horse,  the 
owner,  Canterberry,  recovered  him.     Appellant  presented  two 
defensive  theories.    He  proved  by  several  witnesses  that  he  was 
drinking  on  the  day  of  the  alleged  theft,  and  was  intoxicated. 
He  testified  for  himself,  and  stated  substantially  that  he  had 
been  drinlin;^  whisky  during  the  whole  of  the  day  preceding 
the  theft,  and  at  the  time  of  the  takitig  of  said  horse,  he  was 
dinink  to  such  an  extent  that  he  did  not  know  what  he  was  doing. 
He,  however,  gave  a  circumstantial  account  of  what  he  did  on 
that  occasion.     We  qiiote  from  his  testimony  as  follows :    ''I 
came  back  from  the  hotel  to  Rickelman's  saloon,  where  I  got 
something  more  to  drink.    After  this  I  went  into  the  alley  back 
of  the  saloon,  where  Jack  Bradford's  wagon  was.     Jack  wanted, 
me  to  get  back  in  the  wagon,  and  return  to  the  fish  camp.   I  told 
him,  'Xo;'  I  was  going  to  ride.     I  went  in  the  alley,  and 
mounted   the   Canterberry   hoi-sc,    and   rode   down   the   alley. 
Passed  Jack  Bradford,  when  he  tried  to  pull  me  off  the  horse, 
and  the  horse  began  to  rear  and  plunge.    I  then  rode  on  out  into 
the  street,  having  no  particular  place  in  view;  just  thought  of 
taking  a  ride.    After  riding  a  distance  of  eight  or  ten  miles,  the 
air  and  wind  brought  me  to,  somewhat.    I  had  a  terrible  head- 
ache, and  my  only  desire  was  to  get  rid  of  the  horse.    I  remem- 
ber stopping  at  some  one's  house  on  the  road,  and  asking  how  far 
it  was  to  Lott.     I  tried  to  follow  the  direction,  but  got  lost,  and 
went  up  to  a  house  occu])ied  by  William  ^Mieelis.     I  went  and 
stayed  all  night  there.     The  next  day  (Sunday),  Mr.  Whe<dis 
noticed  that  the  saddle  was  marked  'T.   K.  Barton,  !Marlin, 
Texas.'    lie  asked  me  about  the  saddle,  and  1  told  him,  'Yes,' 
it  was  made  in  Marlin.     On  Sunday  night,  while  we  were  a! 
the  su]iper  table,  a  negro  l)oy  came  in  ond  said  some  one  ha<l 
stolen  !Mr.  IMarcus  Canterberrv's  horse  at  !Marlin.     On  !Mon<lay 
morning,  Mrs.  Wheelis  wanted  to  ride  to  Lott,  and  I  told  her 
to  take  the  horse,  and  ride  him,  which  she  did.    I  was  glad  for 
her  to  do  this,  for  I  thought  some  one  would  see  the  horse  and 
know  him,  and  take  him.     On  Monday  morning  I  told  ^Ir. 
Wheelis  I  got  the  horse  in  Marlin,  and  asked  him  what  was  tho 


f  lott.  lie 
tton.  After 
he  horse  to 
id  horse,  the 
'esenteJ  two 
that  he  was 
intoxicated, 
that  he  had 
y  preceding 
jrse,  he  was 
e  was  doing, 
it  he  did  on 
follows:  "I 
where  I  got 
e  alley  back 
Fack  Avantcil. 
amp.  I  told 
I  alley,  and 
.  the  alley, 
ff  the  horse, 
!  on  out  into 
thought  of 
n  miles,  the 
rrible  head- 
I  reniem- 
ing  how  far 
^ot  lost,  and 
I  went  an<l 
Ir.  Wlio<dis 
">n,  ^^farlin, 
him,  'Yes,' 
we  were  a! 
ne  one  had 
3n  !i[onday 
1  I  told  her 
ras  glad  for 
e  horse  and 
I  told  Mr. 
hat  was  tho 


CADY  V.  STATE. 


570 


best  for  me  to  do  about  it.  He  replied  that  he  did  not  know. 
After  T  was  there  for  about  a  week  or  such  matter,  I  let  him  have 
the  horse,  so  I  couhl  get  some  money  to  leave  the  country  on.  I 
intended,  after  I  got  far  enough  off,  to  write  to  Mr.  Canterberry 
tmd  tell  him  where  the  horse  was.  When  I  got  on  the  horse  at 
^Marlin  I  was  drunk,  did  not  know  what  I  was  doing,  and  tlio 
only  thought  I  had  was  to  take  a  ride.  I  did  not  intend  and 
had  no  idea  of  stealing  the  horse." 

The  defensive  theories  presented  by  appellant  were:    First, 
that,  at  the  time  of  the  alleged  theft,  he  was  laboring  under 
temporary  insanity,  produced  by  the  recent  use  of  whisky,  and 
so  was  not  in  condition  to  form  the  fraudulent  intent  to  steal; 
second,  that  he  took  the  horse  merely  for  the  temporary  purpose 
of  taking  a  ride,  with  no  intent  to  steal  him.     The  court  gave 
the  jury  the  statutory  chai-ge  on  temporary  insanity,  produced 
by  the  recent  use  of  intoxicating  liquor,  and  instructed  them 
that  they  could  only  consider  the  same  in  mitigation  of  the  pen- 
alty they  might  assess  against  the  defendant  in  ease  they  found 
him  guilty.     In  this  connection,  he  further  instructed  the  jury 
as  follows:   "If,  luider  the  evidence,  you  believe  the  defendant, 
at  the  "time  of  taking  tho  horse,  was  in  such  a  condition  of  mind 
as  that  he  was  not  capable  of  or  did  not  possess  the  specific  in- 
tent to  defraud  the  owner  of  the  horse,  by  depriving  him  of  the 
value  thereof,  and  appropriating  the  same  to  his  own  use  or 
benefit,  then  you  will  not  convict  him,  unless  you  further  find 
and  believe  from  the  evidence  that  afterwards  defendant's  mind 
was  restored  to  such  condition  as  that  he  was  capable  of  and  had 
the  intent  then  and  there  to  deprive  the  owner  of  the  horse  or  its 
value  and  to  appropriate  the  same  to  his  own  use  or  benefit,  and 
that,  acting  under  such  intent,  he  retained  possession  of  the 
horse,  or  sold  him  to  Wheelis,  intending  to  deprive  the  owner  of 
he  value  of  the  horse,  and  to  appropriate  same  to  his  (the  de- 
fendant's) use  or  benefit.     So,  if  defendant  did  not  have  the 
intent  to  steal  wdien  he  took  the  horse,  such  lack  or  absence  of  in- 
tent being  the  result  of  his  mental  incapacity  to  form  such  intent, 
yet  if  afterwards,  while  still  in  possession  of  the  horse,  he  be 
came  mentally  capable  of  forming  the  intent  to  steal,  and,  while 
in  such  last-mentioned  mental  state,  he  conceived  and  formed  the 
intent  to  steal  the  horse,  his  condition  of  mind  at  the  time  of 


'^'ll'lll 


:\  ru" 


::f'/  :.,  t 


.     ;  (id  r  ■!    j 

(■■hiiSiii.- 


ifn 


m  ': 


580 


AMERICAN  CRIMINAL  REPORTS. 


i:       M 


taking  the  horse  will  not  avail  to  acquit  him  of  the  charge. 
After  all,  unless  the  intent  to  defraud,  as  above  defined,  existed 
in  defendant's  mind,  either  at  the  time  of  taking  the  horse  or 
subsequently,  as  above  explained,  the  defendant  is  not  to  be  con- 
victed." Appellant  excepted  to  this  charge,  and  requested  the 
court  to  give  the  following  instructions:  "The  defendant  re- 
quests the  court  to  charge  the  jury  as  follows,  to  wit :  If  you  be- 
lieve from  the  evidence  in  this  case  that  the  defendant  took  the 
horse  of  the  prosecuting  witness,  Canterbcrry,  but  that,  at  the 
time  of  so  doing,  he  did  not  intend  to  permanently  deprive  the 
owner  of  the  same,  but  only  intended  the  same  for  a  temporary 
use,  to  wit,  that  of  taking  a  short  ride,  you  will  acquit  the  de- 
fendant, even  though  you  should  believe  the  taking  was  without 
the  consent  of  the  said  Canterbcrry.  If  you  believe  from  the 
evidence  that  the  defendant  took  the  horse  of  !Mr.  M.  U.  Canter- 
bcrry, as  charged  in  the  indictment,  btit  that,  at  the  time  of  said 
taking,  the  defendant  was  so  drunk  as  to  be  incapable  of  form- 
ing in  his  mind  a  fraud\ilent  intent,  and  did  iiot,  by  reason  of 
such  drunkenness,  have  such  frandulent  intent,  you  should  ac- 
quit him,  notwithstanding  the  fact  that  you  may  further  believe 
that,  after  coming  to  himself,  he  converted  the  same  to  his  own 
use  and  benefit ;  and,  if  you  so  believo,  you  will  acquit  the  de- 
fendant, or,  if  you  have  a  reasonable  doubt  thereof,  you  will 
find  him  not  guilty.  You  are  charged  ihat  in  prosecutions  of 
theft,  that  the  fraudulent  intent  of  the  taking  is  the  essential  in- 
gredient and  gist  of  the  crime  of  theft,  and  this  intent  must 
exist  at  the  very  time  of  the  taking,  and  that  no  subsequent 
fraudulent  intent  will  render  the  previous  taking  felonious.  So, 
in  this  case,  if  you  believe  that,  at  the  time  the  defendant  took 
the  horse  in  question,  he  did  not  intend  to  steal  the  same,  but 
that,  subsequent  to  said  taking,  he  conceived  the  idea  of  ap- 
propriating the  horse  to  his  own  use  and  benefit,  and  did  in  fact 
so  appropriate  him,  you  will  find  him  not  guilty ;  or,  if  you  have 
a  reasonable  doubt  thereof,  you  will  find  him  not  guilty."  Said 
special  charges  were  refused  by  the  court,  and  appellant  ex- 
cepted. 

We  do  not  believe  that  the  evidence  raised  the  issue  of  tempo- 
rary insanity.  True,  the  defendant  testified  that  he  had  been 
drinking,  and  testified  that  he  did  not  know  what  he  was  doing; 


the  chax'ge. 
ned,  existed 
he  horse  oi* 
:)t  to  be  con- 
quested  the 
fendant  re- 

If  you  be- 
mt  took  the 
that,  at  the 
deprive  the 
I  temporary 
n|uit  the  de- 
,vas  without 
e  from  the 
U.  Canter- 
ime  of  said 
>le  of  form- 
y  reason  of 

shouhl  ae- 
ther believe 
to  his  own 
]uit  the  de- 
f,  vou  will 
lecutions  of 
essential  in- 
ntent  must 
subsequent 
onious.  So, 
jndant  took 
^  same,  but 
dea  of  ap- 
did  in  fact 
if  you  have 
Ity."  Said 
pellant  ex- 

B  of  tempo- 
p  had  been 
was  dding; 


HALL  V.  COMMONWEALTH 


iSl 


yet  he  testified  with  great  clearness  and  circumstantiality,  giv- 
ing all  the  details  of  the  transaction.  Insanity  has  a  distinct 
moaning,  and,  whether  produced  by  the  recent  use  of  whiskv 
or  other  causes,  it  has  the  same  meaning.  It  is  not  mere  drunk- 
enness. The  court,  however,  gave  a  charge  on  temporary  in- 
sanity, produced  by  the  recent  use  of  intoxicating  liquor,  in  ac- 
cordance with  the  statute.  And  if  he  had  stopped  there,  undcM' 
the  facts  of  this  case,  there  would  have  been  no  error.  But  the 
learned  judge  proceeded  further,  and  told  the  jury  that  if  he 
Avas  in  such  a  condition  at  the  time  he  took  the  horse  as  not  to 
know  what  he  was  doing,  and  afterward  when  he  came  to  him- 
self, he  then  formed  the  intent  to  steal  the  horse,  he  would  then 
be  guilty.  This  is  not  the  law.  The  fraudulent  intent  to  steal 
must  l)e  formed  at  the  very  time  of  the  taking.  Without  this, 
no  subsequent  app^'opriation  will  be  theft.  Appellant  testified 
that  he  took  the  horse  for  temporary  use,  merely  to  ride,  and  this 
statement  appears  plausible  in  connection  with  his  subsequent 
appropriation;  and  the  charge  given  Avith  reference  to  the  intent 
to  steal  the  horse  formed  after  the  act  of  taking  was  calculated 
to  mislead  and  confuse  the  jury.  The  judgment  is  accordingly 
reversed,  and  the  cause  remanded. 
Eeversed  and  remanded. 


Hall  v.  Coir  mon wealth. 

106  Ky.  894—21  Ky.  Law  Rep.  520,  51  S.  W.  Rep.  814. 

Decided  June  15,  1899. 

Larceny:    Habitual   CuiMrxAL:    Former  convictions  —  Evidence  —  In- 
structions— Increased  penalty — Sentence. 

1.  Under  the  Kentucky  rule  it  is  not  necessary  in  larceny  to  instruct 

on  the  question  of  defendant  having  found  the  property. 

2.  The  Habitual  Criminal  Act  is  not  unconstitutional. 

3.  Under  that  act  the  jury  should  find  the  fact  of  former  conviction 

and  fix  the  Increased  penalty;  but  defendant  is  not  entitled  to  a 
separate  trial  on  that  issue. 

4.  It  was  error  for  the  court  to  affix  the  increased  penalty  (sentence 

for  life)  where  the  Jury  had  not  fixed  it,  and  where  the  jury  had 
not  been  fully  instructed  on  that  Issue. 


f^TJ' 


'■  %i 


u!' 


,5  IPit 


5S2 


AMERICAN  CRIMINAL  REPORTa 


t.   '.'*. 


Mm 


M :.!-.. 


\'m. 


Appeal  from  the  Franklin  County  Circuit  Court.    Reversed. 

John  \V.  lUiij,  for  the  appellant. 

W.  S.  Taylor,  Atty.  CJon.,  and  11.  M.  TJi^ttcher,  for  appellee. 

Du  Kkt.t-k,  J.  Appellant  was  found  guilty  of  grand  lareeny, 
under  an  indictment  which,  in  addition  to  tlu;  charge  of  gran<l 
larceny,  allegcil  that  she  had  heen  twice  theretofore  convicted  of 
felonies,  the  punishnient  of  which  was  confinement  in  \\h)  peni- 
tentiary; setting  forth  tlie  terms  and  courts  at  which  the  former 
convictions  had  heen  had.  The  evidence  of  her  guilt  was  cir- 
cumstantial. It  was  shown  that  the  prosecuting  witness,  hav- 
ing divided  his  money,  put  .$!}2  of  it  in  a  sock,  which  he  con- 
cealed in  a  tuh  in  the  yard  of  the  house  wliere  he  was  staying; 
that  he  slept  in  the  same  room  with  appellant,  an<»ther  woman, 
and  two  children;  that  appellant  went  out  into  the  yard  alxiut 
four  o'clock  in  the  morning;  and  that  she  made  purchases  of  fur- 
niture and  other  things,  and  paid  her  rent,  on  that  day.  Kvi- 
dence  was  also  introduced  as  to  two  former  convictions,  which 
were  hoth  for  grand  larceny.  Ohjection  was  made  hotli  to  the 
admission  of  this  testimon}',  and  to  the  unolHcial  character  of  the; 
])erson  by  whom  the  records  of  the  former  convi(!tion  wen?  pro- 
duced; he  being  a  son  of  the  clerk  of  the  penitentiary,  and  act- 
ing as  clerk  during  the  clerk's  sickness.  Ap[)ellant  testitie(l  to 
the  fact  that  she  found  the  money,  not  in  a  sock,  hut  lying  in 
the  path  leading  through  the  back  yard;  that  she  <lid  not  know 
it  was  the  property  of  defendant,  and,  from  his  statement  made 
the  night  before,  thought  he  had  no  money.  The  c<nirt  gave  the 
oi'dinarv  instruction  as  for  grand  larceny;  directing  the  jury 
that,  if  they  found  her  guilty,  they  should  fix  her  punishment  at 
confinement  in  the  penitentiary  for  not  less  than  one  nor  more 
than  five  years,  and  gave  in  addition  an  instruction  that  if  they 
found  her  guilty  nnder  the  first  instruction,  and  should  further 
believe  that  she  had  been  twice  theretofore  convicted  of  felony, 
as  charged  in  the  indictment,  they  should  so  find  and  state  in 
their  verdict. 

The  court  refused  to  charge  the  jury  specially  as  to  what  they 
must  believe  in  order  to  find  appellant  guilty  of  grand  larceny, 
if  they  believed  that  she  foimd  the  money.  This  also  is  urged 
as  ground  for  reversal.     This  question  has  been  already  ruled 


Ko  versed. 

ir  nppcllcc. 

1(1  lareeny^ 
0  of  gnind 
Jiivicted  of 
11  (lie  peni- 
tlie  forinor 
It  was  cir- 
tncss,  hav- 
cli  he  co!i- 
13  staying; 
vr  woman, 
,'ard  about 
ksos  of  fur- 
lay.  Evi- 
)ns,  which 
•olh  to  the 
cter  of  the 

were  pro- 
',  and  a(.'t- 
eHtified  to 
t  lying  in 

not  know 
iient  made 
t  gave  the 
;  tlie  jury 
shment  at 

nor  more 
lat  if  they 
hi  further 
of  felony, 
d  state  in 

what  they 
J  larceny, 
)  is  urg(!d 
ady  ruled 


HALL  V.  COMMONWEALTH. 


583 


U|>on  hy  this  court,  through  -Iiidgc  I'ayntcr,  in  Ifcsler  v.  Com., 
K;  Ky.  Law  K<'p.  7s;5,  2!i  S.  W.  licp.  ST.'.,  wlicre  it  was  held 
that  tlie  instruct  ion  rc(|uiring  liic  jury  to  liclicive  tliat  she  did 
fctloniously  "take,  steal,  and  carry  away"  IIk;  money  was  uutvc. 
favorahic  to  th<!  accus(Ml  llian  il'  tiic!  cn\irt  had  iiiHtructctl  spe- 
cially upftn  the  defense'  that  she  had  found  the  nnMiey,  hecanse, 
"if  the  jury  l)(di(!V(Ml  llnit  she  did  find  the  inoney,  tluy  coidd 
not  fin<l  iutr  gifilty,  under  the  instruct  inns  of  the  court." 

It  is  earnestly  iirgeil  tlmt  it  was  error  to  permit  tlie  introduc- 
tion of  evidencf!  of  former  convictions  at  all  until  the  jury 
should  have-  first  found  her  guilty  umler  llie  charge  for  which 
she  was  then  heing  tried;  (hat.  it  amounted  to  the  admission  of 
testimony  to  impeach  her  general  characler,  which  she  had  not 
put  in  issue,  and  enal)ie<l  Ihr;  ('ommonweallh  to  show  her  to  tlie 
jury  in  the  light  of  a  common  thief,  and  rehut  the  presutiii)t,ion 
of  innocenc(!  which  the  law  gives  her  hy  evidence  in  chief  upon 
a  trial  for  grand  larceny,  it  is  painfully  apparent  that,  with  the 
circumstances  shown  as  to  the  loss  (d"  the  niotiey,  an<l  (ividerice 
of  two  former  convictions  for  gran<l  lan^eny,  the;  accused,  who 
is  an  ignorant  negro  woman,  had  not  the  slightest  chance  that 
an  average,'  jury  would  «'ntertain  a  reasonahh;  douht  of  her 
guilt,  while;,  wilhout  the  (ivideiice  of  former  convictions,  there 
was  a  petssihility  (hat  (hey  might  do  so.  'i'liere  is  a  considerahle 
force,  therefore!,  in  the  proposition  urge'd,  that  this  jjreieteijure' 
elemie'el  the  accuseel  a  fair  trial  of  the-  eifTe^nse!  whe-re'Df  she  was 
ae;cuse'd.  l>ut  the  statute;  as  to  hahitual  e-riminals  fse'c.  \l'.',(K 
Ke;nt»icky  8tatute;s)  seems  \(>  have;  cre'iite'il  an  additional  and 
higher  elegree  e)f  ofTe-nse,  vi/.  the'  commission  eif  a  ielony,  having 
hvcu  therete)fore  twie-e  convie-te'd  eif  a  felony,  etc.  Te>  show  tlie; 
accuseel  guilty  of  this  de'gre-e-  e)f  (he-  edfe'iise  charge'd,  it  is  ne-ces- 
sary  to  show  the  former  ceHivie-tions;  ami  tliis,  eif  e-ourse-,  is  hound 
to  ])rejudice  the  accused, — just  as  e-vide'uce'  showing  malie-e  is 
hound  to  prejudice  the  eledendant  in  a  niunler  case-, — hut  it 
may  he  shown  to  make  e»u(  a  highe-r  <]c"vcc  of  the'  edfense,  which 
authejrizes  the  severer  punishment.  'I'Ik'  statute'  has  heen  he;ld 
constitutietnal,  and  it  has  lie'e-n  he-lej  es-e'titial  to  alle'ge-  the  former 
cfinvictiem  or  ce.nvictieins  in  the-  indictme'ut.  Slcimrl  v.  dorn., 
2  Ky.  Law  Tiep.  3Sr;;  MoanI  r.  Com..  2  Duv.  '.)'.',;  Taylor  r. 
Com.,  3  Ky.  Law  Hep.  78:J;  llofjfjn  r.  Com.,  9  Ky.  Law  Kep. 


uh.-Hi 


584 


AMERICAN  CRIMINAL  REPORTS. 


•n  d 


R'i{    ' 


342,  5  S.  W.  Rop.  307.  The  statute  requires  the  jury  to  find 
the  fiK't  of  the  former  convictions.  There  is  no  provision  for  a 
separate  trial  of  the  fact  of  former  conviction,  nor  do  we  think 
the  statute  intended  there  should  he  one.  The  law  seems  to  work 
a  hardship,  hut  it  is  a  hardship  the  legislature  alone  can  remedy. 
Tn  Combs  v.  Com.,  14  Ky.  l.aw  Rep.  245,  20  S.  W.  Rep.  2(;S, 
this  court,  through  Judge  Lewis,  recognized  the  legality  of  this 
"lure,  saying:  '*It  wa.s  distinctly  and  sufHclently  charg(>tl 
•ic  iidictment,  and  fully  provo<l  on  the  trial,  and  also  found 
by  the  jury,  that  a])pellant  had  l)een  twice  before  the  ])ivs- 
c'.it  offen,  c  convicted  of  a  felony,  the  punishment  of  which  is 
contiiiumeiiL  in  the  penitentiary;  and  therefore  the  penalty  of 
'confinement  in  tlie  penitentiary  for  life  became,  according  to 
section  12,  art.  1,  ch.  20,  Gen.  Stat,  [now  section  1130,  siiprn], 
inevitable,  and  the  court  could  do  no  less  than  so  instruct,  and 
the  jury,  after  finding  the  present  offense  a  felony,  was  bound 
to  render  the  verdict  in  pursuance  thereof.  The  validity  of  tbnt 
statute  has  heretofore  been  sanctioned  bv  this  court  and  it  is  now 
needless  to  discuss  the  question." 

The  jury  rendered  a  verdict  as  f(dlows: 

"We,  the  jury,  find  the  defendant  guilty  of  grand  larceny, 
and  fix  the  punishment  at  one  year  confinement  in  the  Kentucky 
penitentiary.     E.  ^l.  Wallace,  F<n'eman. 

"We,  the  jury,  further  find  that  the  defendant  was  at  the 
April  tenn,  1883,  of  the  Ballard  circuit  court,  convicted  of  a 
felony,  and  that  said  defendant  was  again  at  the  January  term, 
1893,  of  the  Franklin  circuit  court,  convict(Ml  of  a  felony.  E.  ^I. 
Wallace,  Foreman." 

It  is  urged  that  it  was  error  for  the  court  to  senlence  tlie  tlc- 
fendant  to  confinement  in  the  penitentiary  for  life  under  this 
finding;  that  section  1130  sjiecifically  requires  the  jury  by  whom 
the  offender  is  tried  to  fix  by  their  verdict  the  punishment  to  be 
inflicted,  within  the  periods  or  amount  prescribed  by  law.  U])on 
the  other  hand,  it  is  insisted  for  the  Commonwealth  that  by  sec- 
tion 1130  it  is  mandatory  that,  if  convicted  a  third  time  of 
felony,  the  accused  shall  be  confined  in  the  ])enitcntiarv  during 
his  life,  under  the  provision,  "Judgment  in  such  cases  shall  not 
be  given  for  the  increased  penalty,  unless  the  jury  shall  Hnd 
from  record  and  other  competent  evidence  the  fact  of  f(jrmer 


jury  to  find 
)vision  for  a 
do  we  tliink 
lotns  to  work 
can  roniody. 

\  Kop.  i'(;.s, 

ality  of  this 
itly  clinrjiod 
1  also  found 
'c  tlio  jm^s- 
of  wliicli  is 

penalty  of 
ccording  to 
30,  supra'], 
istruct,  and 

was  I)(»nnd 
dity  of  tlint 
id  it  is  now 


nd  Inreeny, 
3  Kentucky 

was  at  the 
s'icted  of  a 
nary  term, 
:)ny  *  E.  ^L 

nee  tlie  (h;- 
und(>r  this 
y  hy  whom 
ment  to  ho 
aw.  Uj)on 
liat  hy  sec- 
•d  time  of 
iry  during 
s  shall  not 
shall  Hn<l 
of  former 


HALL  V.  COMMONWKALTH. 


convictions  for  felony  committed  hy  the  prisoner  in  or  out  of 
this  State."  It  is  arg\ied,  therefore,  that,  as  said  in  the  Comhn 
(Jam.  mipra,  the  life  penalty  hceame  inevitahle,  and  that  it  \v:is 
the  duty  of  the  court,  in  rendering  juilgmeiit,  to  so  fix  it.  Dif- 
fering from  the  Englisli  system,  and  from  that  which  ohtains  in 
the  courts  of  the  United  States  and  in  many  of  the  Slates,  our 
system  requires  the  jury  to  fix  the  punishment  of  the  offender, 
within  the  limitations  preserihed  hy  the  statute,  and  as  to  such 
limitations  they  are  instructed  hy  the  court.  The  other  system 
requires  the  jury  only  to  find  the  fact  of  guilt,  and  the  degree  oi 
the  offense,  if  it  is  an  offense  having  diH"erent  degrees.  Ui)on 
this  verdict  ascertaining  the  fact  of  guilt,  the  court  proceeds  to 
render  judgment  within  the  limitations  fixed  hy  the  law.  Under 
the  old  system,  the  jury  have  nothing  whatevcT  to  do  with  ad- 
justing the  punishment  lo  fit  the  crime.  Under  our  system,  it 
was  intended  that  they  should  have  everything  to  do  with  it,  so 
they  did  not  transgress  the  hounds  prescribed.  And  it  may  be 
argued  with  some  plausibility  that  our  system  coiitemjdates  a 
consideration  by  the  jury  of  the  punishment  to  be  inflicted  under 
the  law,  in  fixing  the  d(>gree  of  the  offense  of  which  they  find  the 
defendant  guilty.  It  is  not  our  duty  to  discuss  the  relative  mc.v- 
its  or  demerits  of  the  two  systems.  That  (pu'stion  is  not  under  dis- 
cussion. I)Ut  it  is  our  duty  to  consider  what  our  own  system  was 
intended  to  effect,  and  whether  a  failure  to  carry  out  its  general 
design  in  any  particular  is  prejudicial  to  any  substantial  right 
of  the  accused  whose  case  is  brought  before  us.  On  the  trial  of 
a  criminal  case  in  the  federal  court,  counsel  for  defense  is  not 
permitted  to  tell  the  jury  what  penalty  will  be  imposed  if  they 
render  a  verdict  of  guilty.  In  our  courts  a  considerable  portion 
of  the  argument  of  counsel  for  the  defendant  is  frequently  de- 
voted to  discussing  the  severity  of  the  punishment,  as  contrasted 
with  the  trivial  nature  of  the  offense.  U'^nder  our  system, 
whether  by  direct  design  as  to  this  point,  or  as  necessary  to  ef- 
fect another  purjiose,  it  is  contemplated,  at  all  events,  that  the 
jury  shoiild  know  and  say  what  punishment  is  to  be  imposed  for 
the  offense  of  which  they  find  the  accused  guilty.  The  statute 
(section  113G)  requires  them  to  fix  by  their  verdict  the  punish- 
ment to  be  inflicted,  within  the  periods  or  amount  prescribed  l)y 
law.     It  will  not  do  to  say  that,  the  fact  of  two  former  convic- 


f       ' 


580 


AMERICAN  CRIMINAL  REPORTS. 


tions  being  ascertained  and  found  by  the  jury,  it  is  inovitablo 
that  punishment  by  amfiueuient  in  the  penitentiary  for  life 
sliouhl  foHow,  and  therefore  that  the  court  is  authorized  to  so  ad- 
judge. If  a  defendant  is  found  guilty  of  murder,  it  is  in- 
evitable that  he  should  be  hung  or  confined  in  the  penitentiary 
for  life;  but  no  Commonwealth's  attorney  would  be  hardy 
enough  to  come  to  this  court  expecting  to  athrm  a  judgment  of 
confinement  for  life  upon  a  verdict  running,  *'We,  the  jury,  find 
the  defendant  guilty  of  murder  as  charged  in  this  indictment." 
And  yet  that  punishment  -would  be  as  inevitable  from  that  ver- 
dict as  it  is  in  this.  Nor  is  there  anything  incompatible  or  con- 
flicting in  the  two  statutes, — sections  1130  and  11 30,  ]iy  the 
one  it  is  mandatory  that,  if  convicted  a  third  time  of  felony,  tho 
accused  shall  be  confined  in  the  penitentiary  during  his  lif(>. 
By  the  other  section  it  is  e(pially  mandatory  that  the  jury  shall 
fix  the  punishment, — just  as  mandatory  that  the  jury  shall  fix 
the  punishment  of  murder  at  confinoment  in  the  penitentiary  for 
life,  at  the  lowest.  This  is  in  strict  accord  with  the  theory 
under  Avhich  the  increase  of  punishment  inflicte<l  upon  habitual 
criminals  is  reconciled  to  the  constitution.  That  theory  is,  as 
we  have  said,  that  a  higher  grade  of  offense,  is  created  by  tho 
statute.  The  accused  is  not  sent  to  the  penitentiary  for  life  for 
committing  grand  larceny,  but  for  the  ofTcnise  of  grand  larceny 
after  having  been  twice  convicted  of  felony,  the  punishment 
whereof  is  confinement  in  the  jienitentiary.  And  so  the  pro])er 
procedure,  in  order  to  inflict  this  seemingly  oppressive  punish- 
ment, I:  that  the  jury  should  find  that  the  accused  is  guilty  of 
grand  larceny ;  that  she  has  twice  theretofore  been  convicted  of 
a  felony,  the  punishment  whereof  is  confinement  in  the  peniten- 
tiary; and  that  the  jury  fixes  her  punishment  at  confinement  in 
the  penitentiary  for  life.  The  contrary  view  is  bound  to  work 
hardship  and  oppression.  A  jury,  in  a  criminal  case,  like  this, 
is  not  presumed  to  know  any  law  as  to  that  case,  except  that 
which  they  are  told  by  the  court;  ior  the  court  is  required  to 
give  to  the  jury,  in  its  instructious,  all  the  law  of  the  case.  They 
are  properly  instructed  as  to  the  law  of  grand  larceny.  They 
are  also  required  to  find  certain  facts.  As  a  matter  of  course, 
it  is  their  duty  to  find  those  facts  accurately ;  but  they  are  not 
told  the  effect  of  their  finding,  nor  can  they,  un  ior  such  circum- 


is  inL.vitiil)le 
firy  foi-  lifn 
zed  to  so  ad- 
cr,  it  is  in- 
pcnitcntiary 
d  be  hardy 
iudginciit  of 
ic  jury,  find 
ndictinont." 
1111  that  \cr- 
tible  or  con- 
3G.  Bv  the 
P  felonv,  the 
iig  his  life, 
e  jury  shall 
iry  shall  fix 

t.' 

tontiary  for 

the  theory 

>on  habitual 

hoory  is,  as 

atod  by  the 

for  life  for 

nd  larceny 

lunishinent 

the  proper 

ive  punish- 

s  guilty  of 

onvieted  of 

he  peniton- 

finenient  in 

nd  to  work 

3,  like  this, 

pxeopt  that 

reqnired  to 

ease.   They 

ny.     They 

of  course, 

ley  are  not 

ich  circum- 


HALL  V.  COMMONWEALTH. 


587 


stances,  be  expected  to  realize  the  importance  of  it.     Under  the 
instructions  as  to  grand  larceny,  they  find  the  accused  guiltv, 
and  fix  her  punishment  at  a  year's  confinement  in  the  peniten- 
tiary,— one   would   think,   an   ample  i)unislimeiit  for   stealing 
$;J2,  under  the  circumstances  as  they  appear  in  this  case,     liut 
they  find,  in  addition, — without  dreaming,  so  far  as  this  record 
shows,  of  the  effect  of  that  finding, — a  fact  upon  which,  accord- 
ing to  the  Commonwealth's  contention,  tlif;  cnurt  inevitably  sen- 
tences the  accused  to  confinement  in  the  penitf-ntiary  for  life. 
Tt  may  be  urged  that,  for  securing  unprejudiced  action  by  the 
jury  in  their  finding  of  such  facts,  it  is  better  that  they  should 
not  know  the  effect  of  their  fimling,     Jhit  our  system  requires 
tliem  to  know  it.     The  case  of  Chenowilh  v.  CommomceaUh 
(  Ky.),  12  S.  AV.  Eep.  585,  is  not  incompatible  with  this  view, 
for  there  the  jury  were  evidently  instructed  as  to  the  elfect  of 
finding   the   existence   of   former   convictions.      Their   verdict 
showed  it.     ]>y  an  error  in  computation,  the  jury  fixed  the  pun- 
ishment at  more  than  this  court  thought  it  should  have  been. 
The  trial  court  rendered  judgment  in  accordance  with  the  ver- 
dict, and  this  court  reversed  the  case,  with  directions  to  render 
what  was  considered  the  jiroper  sentence.    Nor  is  there  any  c(mi- 
flict  whatever  with  this  doctrine  in  the  recent  case  of  llcrit'loii 
r.  CommonwenJlh  (decided  by  Judge  ]Io])son),  48  S.  W.  llcp. 
f>S9.     There  the  iiiry  were  instructed  that  if  thev  found  the  <lc- 
fendant  guilty,  and  also  found  that  he  had  been  twice  previously 
convicted,  as  required  by  the  statute,  they  should  fix  his  punish- 
ment at  confinement  in  the  penitentiary  for  life.     Their  ver- 
dict found  him  guilty  as  charged,  an<l  fixed  his  punishment  at 
confinement  in  the  penitentiary  for  life.     Jt  was  accordingly 
held  that  a  substantial  com])liance  with  the  requirements  of  the 
statute  as  to  finding  the  fact  of  former  convictions  had  been  had, 
because,  under  the  instructions,  the  jury  could  not  have  fixed 
his  pnnisbment  as  they  did,  except  by  finding  the  fact  of  the 
former  convictions.     For  the  reasons  given,  the  judgment  is 
reversed,  with  directions  to  render  sentence  on  the  verdict,  fix- 
ing the  punishment  at  one  year's  confinement  in  the  peniten- 
tiary. 


fi 


i  ''ii\ 


58S 


AMERICAN  CRIMINAL  REPORT& 


State  v.  Lioiitvoot. 

107  Iowa,  344—78  N.  W.  Rep.  41. 

Decided  January  26,  1«99. 

Malicious  Misciiikf:   Grand  jury — Indictment — Malice  toward  the 
otcner — Evidence — Instruction  as  to  facts. 

1.  The  foreman  of  the  grand  jury  had  been  the  informant  before  a 

justice  of  the  peace  In  the  same  matter,  and  was  Instructed  by 
the  jn  'ge  to  abstain  from  taking  any  part  In  the  hearing  of  the 
matter  before  the  grand  jury.  He  indorsed  the  indictment  as 
"A  true  bill."  Held,  that  such  indorsement  does  not  raise  a  pro- 
sumption  that  he  participated  In  the  hearing  of  the  matter  l)y 
the  grand  jury. 

2.  Punctuation  does  not  always  control  in  construing  a  statute. 

3.  Malice  toward  the  owner  is  an  essential   ingredient  in  malicious 

mischief,  and  should  always  be  alleged  in  the  indictment. 

4.  The  indictment  being  for  the  alleged  poisoning  of  a  horse,  testi- 

mony was  admissible  that  at  the  same  time  efforts  had  been  made 
to  poison  other  horses  belonging  to  the  same  person,  and  In  vari- 
ous barns,  such  testimony  bearing  on  the  Question  of  malice. 

5.  It  was  competent  to  show  that  at  two  conversations   between  a 

witness  and  the  defendant,  the  defendant  made  general  th  eats 
that  he  would  have  a  deal  with  some  one,  although  the  name  of 
the  owner  of  the  poisoned  horse  may  have  been  mentioned  !n 
only  one  of  the  conversations. 

6.  There  is  no  error  in  falling  to  Instruct  the  jury  as  to  the  doctrine 

of  alibi,  no  request  lor  such  instruction  being  made. 

7.  It  was  error  for  the  court  to  Instruct  the  jury  that  the  commission 

of  the  crime  was  proven  by  uncontradicted  evidence,  and  that  the 
jury  must  determine  whether  the  defendant  committed  it.  The 
plea  of  "not  guilty"  puts  in  issue  the  entire  accusation.  The  fact 
that  a  witness  Is  not  contradicted  does  not  impose  on  the  jury 
the  duty  to  believe  him.  The  jury  are  the  sole  judges  as  to  what 
has  been  proven.  "Better  abolish  the  right  of  trial  by  jury  at 
once  than  to  permit  judges  to  dictate  the  facts  upon  which  the 
verdict  must  be  founded." 

8.  Several  errors,  not  affirmatively  appearing  in  the  record,  were  not 

considered. 
Robinson,  C.  J.,  and  Granger,  J.,  dissenting. 

Appeal  from  the  District  Court  in  and  for  Cc<k^  County; 
ITon.  II.  !M.  Remley,  .Tudgo. 

The  defendant  was  charged  witli  exposing  a  poisonous  sub- 
stance with  intent  that  it  sliould  l)e  taken  by  a  horse;  being  con- 
victed and  sentenced  to  iniprisonmcnt  in  the  county  jail  for 
nine  and  one-half  months,  he  appeals.    Reversed. 


e  toward  the 

rmant  before  a 

instructed  by 

hearing  of  tlie 

indictment  as 

lot  raise  a  pre- 
the  matter  by 

a  statute, 
t  in  malicious 
ctment. 
a  horse,  testi- 
had  Ijeen  made 
n,  and  in  varl- 
of  malice. 
HIS   between   a 
eneral  th  eats 
h  the  name  ol! 
mentioned  in 

0  the  doctrine 

he  commission 
!,  and  that  the 
iltted  it.  The 
ion.  The  fact 
e  on  the  Jury 
?es  as  to  what 
al  l)y  jury  at 
•on  which  the 

ord,  were  not 


lai;;  County; 

isonous  sub- 

;  bciiif]^  pon- 

nty  jail  for 


STATE  V.  LKJIITl'O  )T. 


5b9 


W.  0.  W.  Gc'ujcr  mid  Jl.  It.  Leech,  t'<.r  ilio  ii|»|)(Hiiiit. 
Milton  llemlcy,  Atty.  Cicii.,  (\  ().  Uoliinj,  aiul  W.  11,  Red- 
man, for  the  State. 

Dkemer,  J.  The  iiKlictnicnt  cliarfrcs  tliat  llic  (Irfciidiiiit,  "on 
tlic  3d  day  of  May,  A.  D.  1S!)4,  did  wilFiilly  and  iiidawl'idly  (».\- 
])oso  a  certain  poisonous  snhstancc,  to  wit,  siryciiiiinc,  by  |ilaciiif^ 
the  same  in  or  about  the  fcLMl  tronjiii  of  a  ccrtaid  duiiicsti(!  ani- 
mal, to  wit,  a  horse,  MoUie  (.'('(hir,  tb(!  intent  then  ami  tiuin^  be- 
in^  that  the  said  horse  .MoUie  Ccidar  should  take  the  .said  jioisoii- 
ous  substance,  tlie  said  horse  beiiij?  then  an<l  then;  tlu;  proixTtv 
of  J.  P.  Stfitler,  contrary  to  the  statutes  of  Iowa  and  in  viola- 
tion thereof."  The  evidence  tends  to  .show  tliat,  in  the  nijilit  fol- 
lowing the  day  specified  in  the  indictincnt,  several  horses  owned 
by  Stotler  were  poi.soned  with  stryclmine.  They  were  in  tlirr'o 
barns,  and  five  of  them,  inclmliiif?  tiic!  one  named  in  the  indict 
mcnt,  were  in  one  barn.  From  tlie  evidence  the  jury  may  well 
have  found  that  poison  was  exposed  in  the  feed  boxes  of  the 
horses,  with  intent  that  it  should  be  taken  by  them. 

1.  In  March,  1S9G,  an  information  chari'iiif^  the  defendant, 
with  the  offense  of  which  he  was  convicted  was  filetl  with  \V.  G. 
Ihisicr,  a  justice  of  the  peace.  The  (lefcn<laiit  was  arrested  by 
virtue  of  a  warrant  issued  on  the  information,  and  brouf,dit  be- 
fore the  justice,  and,  waiving  examination,  he  ^iwc  bail  for  his 
ajipearance  before  the  district  court.  When  the  f?rand  jury 
which  acted  upon  the;  information  and  returned  the;  indictment 
was  impaneled,  Husier  was  appointed  foreman.  lie  was  clial- 
lenf,'ed  by  the  «icfeiidant  on  the  fijround  that  he  was  the  maj^is- 
trate  before  whom  the  jindiminary  hearing  was  had,  the  chal- 
lenge was  sustaine*!,  and  l>usier  was  directed  by  the  court  not  to 
take  any  ])art  in  the  proceedings  when  the  charge  against  the  de- 
fendant was  l)eing  investigated.  The  indorsement  "A  true  bill" 
on  the  indictment  was  returned,  signed  by  Busier  as  foreman, 
and  the  defendant  moved  to  set  it  aside  for  that  among  other  rea- 
sons. The  motion  was  overruled,  and  of  that  ruling  tlie  defend- 
ant complains.  Section  4201  of  the  Code  of  1873,  as  amended 
by  chapter  42  of  the  Acts  of  the  21st  General  Assembly,  is  as  f<d- 
lows:  ''An  indictment  cannot  be  found  without  the  concurrence 
of  four  grand  jurors,  when  the  grand  jury  is  composed  of  five 


,1 1 


if 

1 

■     : 

,       'l 

1          ■ 

(     1 

i 

'11 

1  i:: ! 

i      : 
\  .      1 

itu 


ft  II 

''  '  i 


690 


AMKRICAN  CUIMINAL  REPORTS. 


.!  f 


-^  ( 


monihcrs;  nnd  not  without  the  oonourronco  of  five  ^nuu  .ors 
when  tho  fi'mnd  jury  is  composed  of  seven  nieinhors.  Mvcry  iii- 
(liotiiient  nmst  he  indorsed  'A  true  hill,'  niid  tho  indorsement 
must  he  signed  hy  the  forcninn  of  the  grand  jury."  It  was  thus 
made  the  duty  of  the  foreman  of  a  grand  jury  to  sign  the  in- 
dorsoment  required,  altliough  ho  might  not  have  approved  the 
indietment;  an<l  tho  faet  that  IJusior  sign(»d  the  indorsement  in 
question  does  not  show  that  ho  coneurred  in  the  indietment,  nor 
that  he  took  any  part  in  the  proceedings  which  r<>s(dted  in  tho 
in<lietmcnt.  Whether  it  would  have  heen  jiresnmed  that  ho  did 
take  part  in  surh  proceedings,  had  ho  not  hecn  directed  to  re- 
frain from  so  doing,  we  have  no  occasion  to  deterniino.  Jt  must 
he  presume<l,  in  the  ahsence  of  a  slunving  to  the  contra ••  hat 
lie  oheyed  tho  direction  of  tlie  court;  nnd  the  fact  that  m'- 

formed  the  statutory  duty  in  signing  the  indorsem;nt,  after  tho 
investigation  had  heen  completed  and  tho  notion  to  ho  taken  de- 
termined, does  not  overcome  that  presumption. 

2.  One  ground  of  the  motion  to  set  aside  the  indictment  was 
thnt  tho  minutes  of  the  evidence  of  J.  W.  Cnrney,  whoso  name 
wns  indorsed  on  the  indictment  as  that  of  n  witness,  .vero  not  re- 
turned with  the  indictment.  Tho  record  does  not  show  that  the 
minutes  referred  to  were  not  so  returned. 

3.  Defendant  demurred  to  the  indictment,  nnd  his  demurrer 
wns  overruled.  It  is  contended  that  this  was  error,  for  the  rea- 
son that  the  indictment  does  not  charge  thnt  the  acts  were  done 
maliciously.  The  charge  is  hased  upon  section  3977  of  tho  Code 
of  1873,  which  is  found  under  the  head  of  "Malicious  Mischief 
and  Trespass  on  Property,"  and  reads  as  follows:  *'If  any  i)e;'- 
son  maliciously  kill,  maim  or  disfigure  nny  horse  ...  or 
other  domestic  henst  of  nnother;  or  maliciously  administer  poi- 
son to  nny  such  nnimnls;  or  expose  nny  poisonous  suhstanco 
with  intent  that  the  same  should  he  taken  by  them,  he  shall  ho 
punished,"  etc.  Tho  indictment  charges  thnt  defendant  wilfully 
and  unlawfully  exposed  a  poisniious  substance,  to  Avit,  strv(.'li- 
ninc,  etc.  Does  this  chnrge  an  offense,  under  the  section  quoted  ? 
It  will  not  do  to  sny  thnt  it  is  n  crime  for  one  to  expose  poison 
with  the  intent  thnt  the  snmo  should  be  taken  by  the  animals  of 
another.  Such  act,  under  the  statute,  must  have  been  mali- 
ciously done,  and  to  charge  that  tho  act  was  unlawful  and  wil- 


STATE  V.  LKJHTFOOT.  ,-,..i 

fill  is  not  ('(luiviilciit  (o  suviiif^  tliiit  it  was  in;ili<-ii»ii.-(.  Shilr  r. 
(lovv,  :54  N.  11.  nid;  Slide  v.  Hiissru,  CO  Mo.  IKK  Tli..  icnii 
"wilful"  iiK'iuis  only  tlint  tlio  net  wns  »l<»iio  intent innally,  <  v 
that  it  was  dono  pnr|His«'ly  nnd  (l('lil)oratoly.  SInIc  v.  WinditJil. 
1)5  lown,  470,  (;+  N.  W.  Jtop.  420;  Slate  v.  Clnd;  102  Inwn, 
«]S5,  72  X.  W.  Kop.  2!)0.  And  the  tcnti  •'uiilawfnlly"  implies 
tliut  tlio  net  is  done  or  not  done  ns  tlie  law*  allows  or  reiiuins. 
Slate  r.  Massci/,  !)7  X.  C.  40."i,  2  S.  K.  Kep.  145.  The  Ihmt- 
tion  of  the  word  *'unlawf\illy"  does  not  disfteiiso  with  the  neces- 
sity of  spceifically  alle{;in{^  the  olcnients  refpiired  hy  tlio  enact- 
ing clnnse  of  a  statute  and  hy  the  rules  of  oriiuinal  pleadiui-  to 
constitute  the  crime  charged  against  the  defendant,  ('(iininon- 
vwallh  V.  liijrnes,  120  Mass.  248,  nnd  eases  cited.  All  that  is 
eharg(»d  in  the  indictment  is  that  defcMidant  pur])osely  exposed 
poison,  in  disregard  of  law.  To  our  minds,  this  does  not  charge 
an  indictable  offense.  Code  187^3,  §  121)8,  says  that  an  indiet- 
juent  must  be  direct  nnd  certain  as  regards  the  particular  cir- 
eumstanees  of  the  offense  charged,  when  they  are  necessary  to 
constitute  a  complete  offense.  We  have  held  that  it  is  not  suHi- 
cient  to  simply  charge  that  an  act  was  unlawfully  done.  Stale 
V.  Uailway  Co.,  (S^  Iowa,  508,  19  X.  W.  Rep.  299.  In  constru- 
ing a  similar  statute  to  the  one  now  under  consideration,  wo 
said  in  Slate  v.  IlaiTis,  11  Iowa,  414:  ''Malice  towards  the 
owner  of  the  animal  is  the  ingredient  of  this  offense."  See, 
also,  Slate  v.  }YiIliamson,  08  Iowa,  351,  27  X.  W.  Rep.  259, 
and  State  v.  Linde,  54  Iowa,  139,  0  X.  W.  Rep.  lOS,  which 
apply  the  same  rule  to  the  statute  now  under  consideration. 
There  can  be  no  doid)t,  we  think,  that  the  proper  construction 
of  the  statute  is  that,  to  constitute  a  crime,  the  poison  must  he 
maliciously  exposed.  While  it  may  be  true  that  the  projier 
grammatical  construction  of  the  statute  is  that  it  is  a  crime  to 
expose  poison  at  any  time,  and  for  any  purpose,  with  intent, 
etc.,  yet  we  do  not  think  the  use  of  a  semicolon  instead  of  a 
comma  is  controlling.  Punctuation,  if  of  any  significance,  is 
always  the  last  resort.  Shriedley  v.  State,  23  Ohio  St.  130. 
The  place  in  which  the  section  is  found  in  the  Code  is  quite 
significant.  If  malice  is  an  essential  ingredient  of  the  offense, 
it  must  be  charged,  and  the  use  of  the  words  "wilfully  and  un- 
lawfully" is  not  sufficient.  Boyd  v.  State,  2  Humph.  39 ;  Thomp- 


* 


^i-:i^ 


'm 


592 


AMERICAN  CRIMINAL  REPORTS. 


litt    'f 


V  :i 


ii }] 


son  V.  State,  51  Miss.  353 ;  Slate  v.  Jachson,  34  X.  C.  329 ; 
CommonwcaHh  v.  Williams,  110  ^Isiss.  401;  State  v.  Ncxvhy, 
64  N.  C.  23.  The  case  of  Slate  v.  (juiiltl,  40  Town,  372,  is  not 
in  conflict  with  this  conclusion.  The  indictment  in  that  caso 
was  framed  under  section  40S9  of  the  Code  of  1873,  not  under 
397!>,  and  malice  is  not  an  essential  ingredient  of  the  crime  of 
nuisance.  It  is  always  an  essential  in  cases  of  malicious  mis- 
chief. See  cases  heretofore  cited,  and  People  v.  Olsrii,  G  Utah, 
284,  22  Pac.  Kep.  1G3;  United  Stales  v.  (Jidcon,  1  :Miip:.  292 
(Gil.  220);  Stale  v.  Pierce,  7  Ala.  728;  Slate  v.  M'ileox,  3 
Yerg.  277.  The  demurrer  to  the  indictment  should  have  been 
sustained. 

4.  The  appellant  complains  that  he  was  recpiired  to  plead  and 
go  to  trial  on  the  day  the  demurrer  was  overruled,  and  that  ho 
was  not  allowed  the  time  given  by  law  in  which  to  plead  and 
]irepare  for  trial.  The  record  fails  to  show  any  objection  to 
what  was  thus  done. 

5.  On  the  trial  Stotler  was  permitted  to  state,  notwithstand- 
ing objections  of  the  defendant,  the  number  of  horses  he  had  in 
different  barns  on  the  night  of  the  poisoning;  the  condition  the 
horses  were  in  at  the  time;  the  number  of  horses  and  kinds  and 
arrangement  of  stalls  in  the  barn  in  which  Mollie  Cedar  was 
kept;  the  number  of  boxes  in  that  barn  in  which  poison  was 
found;  and  the  number  of  separate  barns  in  which  horses  wen; 
poisoned;  and  the  number  of  boxes  shown  to  a  druggist  named 
Hampton  for  examination.  We  do  not  find  any  error  in  ad- 
mitting the  evidence  to  which  reference  has  been  made.  Xo 
poison  was  taken  from  the  box  of  Mollie  Cedar,  although  it  con- 
tained some  of  the  preparation  in  which  strychnine  was  found 
in  other  boxes.  The  testiinony  in  regard  to  other  horses  an<l 
other  barns  tended  to  explain  and  show  the  premeditated  and 
malicious  character  of  the  act  which  caused  the  death  of  Mollie 
Cedi-r. 

0.  A  witness  named  Alger  was  permitted  to  testify  that  ho 
and  the  defendant  were  talking  about  going  to  Missouri,  and 
that  the  defendant  said  "he  was  xjot  ready  to  go  yet,  until  ho 
got  through  dealing  with  some  of  these  sons  of  bitches  aromid 
here."  A  motion  to  strike  out  that  testimony  was  denied,  and 
of  that  ruling  the  defendant  complains,    lie  relics  upon  Stale  v. 


STATE  V.  LIGIITFOOT. 


'A  X.  C.  329; 
ate  V.  Ncxohy, 
rt'ii,  372,  is  not 
it  in  that  case 
B7.'{,  not  undor 
if  the  crinio  of 
malicious  niis- 
Olscn,  0  Utnli, 
,  1  :Minr..  2!i2 
!  r.  M'tUox,  3 
)uld  have  been 

(l  to  plead  and 
d,  and  that  ho 
1  to  pl(\'Hl  and 
y  objection  to 

notwithstand- 

»rses  he  had  in 

!  condition  the 

and  kinds  and 

lie  Cedar  was 

eh  poison  was 

di  horses  weri; 

rnfj^ist  named 

)•  error  in  ad- 

'n  made.     Xo 

thonjih  it  con- 

ne  was  found 

er  horses  an<l 

neditated  and 

:?ath  of  Mollie 

est  if  V  that  ho 
Missouri,  and 

yot,  until  ho 
itches  arouml 
s  denied,  and 

jpon  tStale  v. 


M'dlmeicr,  102  Iowa,  G92,  72  X.  W.  Hop,  275,  as  suppnrtiii<; 
his  complaint.  There  is  nothing  in  that  case  to  indicate  to  wlioiii 
or  to  what  the  threat  of  the  defendant,  which  was  in  (nuistidu. 
referred.  The  threat  or  statement  under  eonsidcralion  in  tliis 
case  was  made  in  a  second  conversation  which  the  witness  iuid 
with  tlio  defendant.  In  the  first  one,  which  occtirnMl  \^vU^vv  the 
horses  were  poisoned,  the  defendant  stated  that  "he  luul  u  littk; 
deal  to  make  with  Stotler,  and  when  he  did  it  wuuhl  be  a 

damned  sore  deal  with  him."     The  Avitnoss  did  not  rem her 

that  Stotler's  name  was  mentioned  in  tlu;  second  conversation, 
but  the  jury  may  well  have  found  the  reference  to  have  been  to 
Stotler.  Under  these  circumstances,  we  think  the  motion  to 
strike  tlu;  testimony  was  properly  overruled. 

7.  Testimony  was  given  in  behalf  of  the  defendant  which 
tendedto  show  that  he  was  at  his  home  during  all  of  the  night 
in  which  the  poisoning  was  done,  and  he  complains  because  the 
court  did  not  charge!  the  jury  in  regard  to  an  alihi.  Xo  instruc- 
tion of  that  character  was  asked,  as  in  Slate  v.  Porter,  74  Iowa, 
r»23,  38  X.  W.  Rep.  514,  and  the  court  did  not  abuse  its  discre- 
tion in  not  referring  to  the  alleged  alitii  in  its  charge. 

8.  In  the  fourth  jiaragraph  of  the  charge  the  court  stated  that 
the  evidence  showed,  without  contradiction,  that  the  crime 
charged  had  been  committed,  and  that  the  jury  was  to  deter- 
mine whether  it  had  been  committed  by  the  defendant.  It 
seems  to  us  that  in  so  doing  the  court  clearly  invaded  the  prov- 
ince of  the  jury.  The  rule  is  well  settled  that  tlie  jury  alone 
can  determine  questions  of  fact  in  a  criminal  case,  and  that  the 
ju<lge  cannot,  either  in  his  charge  or  at  any  time  during  the 
tria,',  declare  or  deny  the  existence  of  any  fact  bearing  on  the 
issues  and  which  is  in  contest.  Moore  v.  Slate,  85  Ind.  00. 
Our  fundamental  law  guaranties  to  one  accused  of  crime  the 
right  to  a  public  trial  by  an  impartial  jury.  Sec.  10,  art.  1, 
Const.  And,  to  safeguard  his  rights  in  this  respect,  the  legis- 
lature expressly  provided  that  "on  the  trial  of  an  indictment 
for  any  other  offense  than  libel,  questions  of  law  arc  to  be  de- 
cided by  the  court.  .  .  .  Questions  of  fact  are  to  be  tried  by 
jury."  Code  1873,  §  4430.  So  tenacious  have  we  been  for  this 
rule  that  we  have  uniformly  held  that  a  defendant  in  a  criminal 
case,  be  the  charge  a  felony  or  a  misdemeanor,  cannot  waive  a 

Vol.  XI  -  38 


'■  n 


%~s 


i'  ( 


Ml!  ft 


591 


AMERICAN  CRIMINAL  REPORTS. 


fW.  !'i  E 


jury,  and  submit  his  case  to  the  court  to  find  the  facts.    State  v. 
Tucl-cr,  90  Iowa,  276;  State  v.  Douglass,  96  Iowa,  308,  and 
cases.    Xow,  if  the  court  cannot  try  an  issue  of  fact  by  consent, 
it  is  difficult  to  see  on  what  theory  he  may  find  some  of  the  facts 
over  the  defendant's  protest.     The  plea  of  not  guilty  puts  in 
issue  every  material  element  of  the  offense  charged,  and,  if  the 
court  may  find  one  fact  established,  it  may  find  all.    We  do  not 
think  the  court  has  power  to  instruct  that  any  essential  fact  is 
established,  notwithstanding  there  may  be  no  evidence  to  the 
contrary.    The  jury  have  the  right  to  disbelieve  any  of  the  wit- 
nesses whose  evidence  they  see  fit  to  reject,  and  the  court  is 
]K)wcrless,   in  criminal  cases.     Commonwealth  v.   Knapp,   10 
Pick.  477.     They  have  power  to  return  a  verdict  of  acquittal  in 
a  criminal  case,  although  the  evidence  clearly  shows  the  com- 
inisaion  of  the  crime  and  is  uncontradicted.     In  this  sense,  a 
jury  in  a  criminal  case  is  judge  of  both  the  law  and  the  fact;, 
for  the  court  cannot  set  aside  its  verdict  and  grant  a  new  trial, 
liut,  aside  from  this,  as  the  jury  must  pass  upon  all  qiiestions  of 
fact,  they,  of  necessity,  must  weigh  the  evidence,  and  in  doing 
this  they  have  the  right  to  disbelieve  any  and  all  the  witnesses. 
As  said  by  Garoutte,  J.,  in  the  case  of  People  v.  ^Vehster,  111 
Cal.  381,  43  Pac.  Rep.  1114:  '"A  jury  in  a  criminal  case  is  not 
Iwund  to  believe  the  uncontradicted  statement  of  a  witness  as 
to  a  fact."     That  court,  in  People  v.  Murray,  86  Cal.  34,  24 
Pac.  Rep.  802,  said:  ''The  jury  were  not  bound  to  take  the  tes- 
timony of  any  witness  as  tnie.     From  the  nuinner  of  the  ]n*ose- 
cuting  witness,  and  the  nature  of  his  whole  testimony,  the  jury 
might  have  disbelieved  him,  if  the  defendant  had  not  introduced 
any  evidence  at  all.     This  whole  matter  was  for  the  jury,  and 
not  for  the  court."     Again,  that  court  said,  in  People  v.  Casei/, 
65  Cal.  201,  3  Pac.  Rep.  874,  that  the  trial  court  had  no  right 
even  to  tell  the  jury  what  the  evidence  'shows.'     The  province 
of  the  jury,  in  passing  ujwn  the  facts  of  a  case,  is  a  broad  one. 
It  is  practically  unlimited.     It  is  a  constitutional  right  given 
to  the  jurors,  it  is  a  constitutional  duty  imposed  upon  them. 
They  were  not  bound  to  take  this  witness'  statement  of  her  age 
as  true.    They  had  the  right  to  disbelieve  it,  and  were  not  holden 
to  any  coui*t  for  dereliction  of  duty  in  not  believing  it.    It  would 
l)o  a  matter  between  them  and  their  consciences  alone.   It  is  for 


cts.  Stale  V. 
>va,  308,  and 
?t  by  consent, 
e  of  the  facts 
iiilty  puts  in 
1,  and,  if  the 
We  do  not 
ential  fact  is 
dence  to  tlio 
ly  of  the  wit- 
the  court  is 
Knapp,  10 
f  acquittal  in 
3WS  the  coni- 
this  sense,  a 
md  the  fact;, 
;  a  new  trial. 
I  questions  of 
and  in  doinjr 
:he  witnesses. 
\Vebster,  111 
al  case  is  not 
a  witness  as 
1  Cal.  34,  24 
i  take  the  tes- 
of  the  ]irose- 
ony,  the  jury 
ot  introduced 
he  jury,  and 
pie  V.  Casey, 
had  no  right 
riie  province 
a  broad  one. 
1  rij^ht  j2:iven 
I  upon  them, 
tit  of  her  ajrc 
re  not  holden 
it.  It  would 
>ne.    It  is  for 


STATE  V.  LIGHTFOOT. 


59; 


the  jury  to  say  when  truth  and  when  falsehood  come  from  tho 
mouth  of  the  witness.  The  conduct  of  this  witness  when  upon 
the  stand  may  have  shoAm  her  to  have  been  lying.  Her  appear- 
ance may  have  shown  her  to  have  been  of  mature  years.  The 
inherent  improbabilities  of  her  testimony  may  have  placed  it 
beyond  the  pale  of  belief."  These  rules  do  not  prevent  the 
court  from  directing  a  verdict  of  not  guilty,  nor  from  saying 
that  the  defendant  was  not  guilty  of  some  particular  offense, 
as  in  tSparf  v.  United  States,  150  U.  S.  51,  15  Sup.  Ct.  273, 
10  Am.  Crim.  Rep.  1G8,  Avhich  contains  a  most  elaborate  dis- 
cussion of  the  question  of  jurors  being  judges  of  both  the  law 
and  the  fact.  But  this  is  quite  a  different  proposition  from  a 
statement  saying  that  the  evidence  does  establish  a  certain  fact 
Ijcyond  dispute.  To  say  that  a  fact  is  not  established  in  a  crim- 
inal case,  and  that,  therefore,  the  defendant  is  not  guilty,  is 
(]uite  different  from  saying  that  a  certain  element  of  the  crime 
is  established  by  the  evidence,  and  that  but  one  more  fact  need 
be  established  to  make  out  the  offense.  In  the  case  of  People  r. 
(lart)utt,  17  Mich.  9,  Judge  Cooley,  speaking  for  the  court,  said: 
"The  trial  of  criminal  cases  is  by  a  jury  of  the  country,  and 
not  by  the  court.  The  jurors,  and  they  alone,  aie  to  judge  of 
the  facts  and  weigh  the  evidence.  The  law  established  this  tri- 
l)unal  because  it  is  believed  that,  from  its  nund)ers,  the  mode  of 
their  selection,  and  the  fact  that  the  jurors  come  from  all  classes 
of  society,  they  are  better  capable  to  judge  of  motives,  weigh 
probabilities,  and  take  what  may  be  called  a  'common-sense 
view'  of  a  set  of  circumstances,  involving  both  act  and  intent, 
than  any  single  man,  however  pure,  wise,  and  eminent  he  may 
be.  This  is  the  theory  of  the  law,  and,  as  applied  to  criminal 
accusations,  it  is  eminently  wise  and  favorable  alike  to  liberty 
and  justice.  But,  to  give  it  full  effect,  the  jury  must  be  left  to 
M'oigh  the  evidence,  and  to  examine  the  alleged  motives,  by 
their  own  tests.  They  cannot  properly  be  furnished  for  this 
])urposo  Avith  balances  Avhich  leave  them  no  discretion,  but 
which,  under  certain  circumstances,  will  compel  them  to  find  a 
nmlicious  intent  when  they  cannot  conscientiously  say  they  be- 
lieve such  an  intent  to  exist."  In  the  case  of  Houston  v.  State, 
4  G.  Greene,  437,"  defendant  Avas  accused  of  the  crime  of  de- 
facing and  marking  a  school-house,  and  the  trial  court  instructed 


,•,,1 


Min 


m 


''■:» 


9,  -  M 


596 


AMERICAN  CRIMINAL  REPORTS. 


1.,  ■  i' 


l\-i^ 


that  the  State  had  proved  all  that  was  necessary  with  reference 
to  the  school  district.  This  court  said:  ''This  is  error.  This 
was  charging  the  jury  upon  the  weight  and  sufficiency  of  testi- 
mony. It  is  not  within  the  province  of  a  judge  to  instruct  a 
jury  as  to  what  facts  are  proved  or  not  proved,  lie  may  explain 
to  them  the  legal  effect  of  facts,  biit  the  facts  themselves  are  to 
be  ascertained  exclusively  by  the  jury.  Better  abolish  the  right 
of  trial  by  jury  at  once  than  to  i^ermit  judges  to  dictate  the  facts 
upon  which  the  verdict  must  be  founded.  The  practice  of  charg- 
ing the  jury  upon  the  facts  may  have  precedent  in  some  of  the 
older  States ;  but  in  Iowa  it  has  ever  been  regarded  as  danger- 
ous, as  a  usurpation  of  power,  and  as  an  interference  with  tho 
rights  of  parties  and  the  province  of  jiirors."  That  rule  thus  so 
clearly  stated  has  never  been  departed  from  in  this  State,  unless 
it  be  in  one  case,  to  which  we  will  hereafter  call  attention.  Soo, 
also.  State  v.  Donovan,  Gl  Iowa,  3G9,  46  ?^.  W.  Eep.  206 ;  >S7a/e 
V.  Stowell,  60  Iowa,  S.^.^,  1.5  N.  W.  Rep.  417 ;  State  v.  Porter, 
74  Iowa,  627,  38  N.  W.  Rep.  514.  In  the  case  now  before  us 
there  was  circumstantial  evidence  tending  to  show  that  some  of 
the  prosecuting  witness'  horses  were  poisoned,  and  direct  evi- 
dence that  strvchnine  was  found  in  some  of  the  feed  boxes,  not, 

V  7  7 

however,  in  that  where  the  mare  ^follie  Cedar  was  kept.  True, 
she  died  about  the  same  time  that  the  other  horses  did,  but  there 
is  no  direct  evidence  that  her  symptoms  dennto<l  strychnine  poi- 
soning. There  is  evidence  from  several  witnesses  that  tliey 
thought  the  mare  had  the  colic.  There  is  also  evidence  to  the  ef- 
fect that  all  the  horses  appeared  as  if  they  had  been  poisoned. 
Xow,  if  the  jury  had  found  that  the  mare  in  question  had  been 
poisoned,  no  court  would  have  disturbed  their  verdict.  But  it 
was  certainly  a  question  of  fact  for  the  jury,  and  not  of  law  for 
the  court.  The  attorney-general  contends,  however,  that  defend- 
ant admitted  while  on  the  witness  stand  tliat  the  horses  had  l)een 
poisoned.  This  is  a  mistake.  He  did,  it  is  true,  refer  to  the 
horse  poisoning  as  fixing  a  date  or  a  time,  and  also  stated  tliat  ho 
learned  of  the  poisoning  at  a  certain  time.  But  this  was  simply 
to  fix  a  date,  and  to  make  clear  his  whereabouts  at  a  particular 
time.  After  a  careful  examination  of  the  entire  record,  we 
think  we  may  safely  affirm  that  the  defendant  nowhere  admitted 
that  the  horses  were  in  fact  poisoned.    We  are  confirmed  in  this 


ith  reference 
error.     This 
mcy  of  testi- 
to  instruct  a 
may  explain 
isclves  are  to 
ish  the  right 
tate  the  facts 
ice  of  eharg- 
some  of  th(j 
d  as  danger- 
tice  with  tho 
rule  thus  so 
State,  unless 
intion.    Sco, 
'.  206 ;  Slate 
'e  V.  Porter, 
>w  before  us 
hat  some  of 
I  direct  evi- 
l  boxes,  not, 
wept.    True, 
d,  but  there 
•chnine  poi- 
s  that   they 
ce  to  the  ef- 
n  poisoned, 
m  had  been 
let.     But  it 
t  of  law  for 
hat  dofend- 
es  had  been 
•efer  to  the 
I  ted  that  ho 
was  sini])ly 
I  particular 
record,  we 
'c  admitted 
ined  in  this 


STATE  V.  LIGHTFOOT, 


59T 


vie  TV  by  the  fact  that  at  the  conclusion  of  the  evidence  defendant 
moved  for  a  verdict,  and  one  of  the  grounds  of  his  motion  was 
that  there  was  no  evidence  that  the  animal  had  been  poisoned 
and  no  evidence  that  there  was  any  poison  in  her  trough.  If  tho 
fact  had  been  admitted,  it  is  strange  that  such  a  motion  should 
have  been  made.  In  this  respect,  as  well  as  in  some  others,  tho 
case  differs  from  State  v.  Huff,  76  Iowa,  200,  40  X.  ^\.  Rop. 
720.  There  the  defendant  had  a  permit  to  sell  liquor,  and  the 
State  introduced  the  certificates  filed  by  him  showing  such  sales. 
These  were  distinct  written  admissions  by  the  defendant  that  he 
had  made  sales,  and  were  held  to  be  admissible  for  the  purpose. 
On  this  state  of  facts,  the  trial  court  instructed  that  testimony 
showed  that  defendant  sold  intoxicating  liquors  at  his  place  of 
business,  and  that  the  only  question  to  be  considered  was 
Avhether  he  made  the  sales  in  good  faith,  for  the  actual  necessi- 
ties of  medicine.  In  that  case  there  was  a  solemn  written  ad- 
mission of  the  defendant  that  he  had  sold  liquors,  and  the  in- 
strTiction  was  held  to  be  correct.  Without,  at  this  time,  ques- 
tioning the  rule  of  that  case,  it  is  sufficient  to  say  that  it  is  not 
an  authority  in  support  of  the  instruction  given  in  the  case  nt 
bar.  Many  civil  cases  can  be  found  supporting  the  rule  of  the 
instruction  given  in  this  case,  -JHit  they  are  not  applicable,  for 
reasons  which  sufficiently  appear  from  what  has  already  been 
said.  We  think  the  instruction  was  erroneous,  and  that  the 
question  of  fact  assumed  therein  to  be  tnie  should  have  been 
submitted  to  the  jury. 

9.  Lastly,  it  is  insisted  that  the  verdict  is  not  supported  by 
the  evidence.  In  view  of  the  reversal,  it  is  bettor  that  we  ex- 
press no  opinion  upon  this  subject.  For  the  errors  pointed  out 
the  judgment  is  reversed. 

Robinson,  C.  J.  (dissenting).  I  concur  in  the  reversal  of 
the  judgment  of  the  district  court,  but  do  not  agree  with  the 
conclusion  of  the  majority  that  the  indictment  was  not  sufficient. 
The  section  of  the  Code  of  1873  under  which  it  was  returned 
describes  three  offenses,  using  the  word,  "maliciously"  in  de- 
fining each  of  the  first  two,  and  omitting  that  word  in  defining 
the  third,  which  is  the  one  charged  in  the  indictment.  The 
omission  cannot  be  regarded  as  accidental,  and,  although  per- 


5t)S 


AMERICAN  CRIMINAL  REPORTS. 


P  ■  ;: 


':¥''} 


li|i:|?r:i! 


liaps  unwise,  should,  I  think,  be  given  effect.  The  indictment 
eliarges  that  the  defendant  did  wilfully  and  unlawfully  commit 
the  act  described,  substantially  in  the  language  of  the  statute, 
and,  according  to  the  rule  generally  applied  in  such  cases,  that 
was  sufficient.  See  State  v.  Bait;  92  Iowa,  28,  60  IST.  W.  Rep. 
480;  Munson  v.  State,  4  G.  Greene,  483;  2  ]VrcClain,  Criminal 
Law,  §  833.  Of  the  cases  of  State  v.  Ilarrk,  11  Iowa,  415, 
State  V.  WHJianmm,  08  Iowa,  3.51,  27  N".  W.  Rep.  259,  and 
State  V.  Limle,  54  Iowa,  139,  0  X.  W.  Rep.  108,  cited  in  the 
opinion  of  the  majority  on  this  question,  the  first  and  second 
involved  the  maiming  and  disfiguring,  and  the  third  the  killing, 
of  domestic  animals.  In  none  of  them  was  the  offense  sought 
to  be  charged  in  this  case  in  any  manner  involved,  and  they  do 
not  appear  to  be  in  point.  It  is  my  opinion  that  the  ruling  on 
the  demurrer  to  the  indictment  was  correct. 

Granger,  J.,  concurs  in  the  dissent. 


litei^ 


State  v.  JoirxsoN. 

7  Wyo.  512—54  Pac.  Rep.  502. 

Decided  October  3,  1898. 

MAticious  Trespass:   Construction  of  statute — Specific  intent. 

1.  The  malice  necessary  to  constitute  the  offense  of  malicious  mis- 

chief or  malicious  trespass  is  something  more  than  the  malice 
which  is  ordinarily  inferred  from  the  wilful  doing  of  an  unlaw- 
ful act  without  excuse. 

2.  Statutes  such  as  section  61,  Laws  1890,  punishing  as  a  crime  mali- 

cious or  mischievous  injury  to  the  property  of  another,  are  not 
intended  to  make  every  wilful  and  wrongful  act  so  punishable, 
but  they  are  devised  to  reach  that  class  of  cases  where  the  act  is 
done  with  a  deliberate  intention  to  injure. 

3.  In  order  to  bring  an  offense  under  the  head  of  malicious  mischief, 

it  must  appear  that  the  mischief  was  itself  the  object  of  the  act, 
and  not  that  it  was  incidental  to  some  other  act,  lawful  or  un- 
lawful. 

4.  Where  the  defendant  drove  a  I  and  of  sheep  across  the  uninclosed, 

unimproved  and  uncultivated  lands  of  the  prosecuting  witness, 
and  in  doing  so  did  not  stop  to  graze  them  thereon  any  longer 
than  sheep  do  graze  while  being  driven  from  place  to  place  by 
the  usual  and  ordinary  methods  employed  to  so  drive  them,  in 


indictment 
illy  commit 
the  statute, 
1  cases,  that 
N".  W.  Rep. 
1,  Criminal 
Iowa,  415, 
.  259,  an<l 
iited  in  the 
and  second 
the  killing, 
mse  sought 
nd  they  do 
3  ruling  on 


intent. 

licious  mis- 

the  malice 

C  an  unlaw- 

crime  mali- 
ler,  are  not 
punishable, 
e  the  act  is 

IS  mischief, 

of  the  act, 

vful  or  un- 

uninclosed, 
ig  witness, 
any  longer 
o  place  by 
e  them,  in 


STATE  V.  JOHNSON. 

the  absence  of  any  evidence  of  malice,  or  that  the  mischief  was 
the  object  of  the  act,  held,  that  the  facts  do  not  constitute  any 
oftense  under  the  laws  of  the  State;  and  the  act  of  defendant  Is 
not  within  the  provisions  of  section  01  of  the  Crimes  Act  of  1890, 
defining  malicious  trespass. 

Resen-cd  questions  from  the  District  Court,  Uinta  County; 
Hon.  David  H.  Craig,  Judge. 

B.  A.  Johnson  was  charged  with  malicious  trespass  under 
the  statute.  There  was  an  agreed  statement  of  the  evidence, 
and  the  district  court  resen-ed  four  questions  for  the  decision 
of  this  court  as  follows : 

1.  Is  the  act  of  driving  a  herd  of  sheep  across  the  land  of  an- 
other, which  is  uninclosed,  unfenced,  unimproved,  and  entirely 
in  a  state  of  nature,  a  trespass  under  the  laws  of  this  State  ( 

2.  Is  such  an  act  ]mnishablo  luider  section  Gl  of  the  Crimes 
Act,  Session  Laws  IS  DO  ? 

3.  Is  such  driving  a  malicious  trespass  imder  said  section, 
either  with  or  without  notice  from  the  owner  forbidding  such 
driving  across  ? 

4.  Does  the  information  in  this  case,  under  the  statement  of 
facts  as  agreed  upon,  charge  any  oftense  vmder  the  laws  of  this 
State  ? 

The  facts  stated  are  in  brief  that  the  defendant,  in  'driving  a 
band  of  sheep  from  a  dipping  corral  to  a  neighboring  railroad 
station,  drove  them  over  and  cross  certain  uninclosed,  unim- 
proved, and  uncultivated  land  of  the  prosecuting  witness,  and 
that  the  defendant  did  not  stop  to  graze  them  thereon  for  any 
greater  leng-th  of  time  than  sheep  do  graze  while  being  driven 
from  place  to  place  by  the  usual  and  ordinary  method  of  so  driv- 
ing them. 

John  ir.  Samvion,  for  the  State. 
Ilamm  S  Arnold,  for  the  defendant. 

Corn,  J.  (after  stating  the  facts  as  a1»ove).  If  this  were  a 
civil  action  for  damages,  a  part  of  the  questions  would  become 
important  which  in  this  case,  involving  only  the  construction 
of  a  criminal  statute,  it  will  be  unnecessary  for  us  to  decide.  It 
is  very  well  settled  that  the  more  roaming  of  cattle  and  other 
domestic  animals  upon  uninclosed  private  lands  in  the  Western 


600 


AMERICAN  CRIMINAL  REPORXa 


country  docs  not  constitute  a  trespass.  A  distinction  has  boon 
insisted  upon  in  the  case  of  sheep,  which  are  not  permitted  to 
roam  at  will,  but  are  herded  and  directed  by  a  shepherd ;  and  it 
is  maintained  that  when  they  are  driven  upon  such  lands  for 
the  purjiose  of  pastiirage,  it  constitutes  a  trespass  for  which  dam- 
ages may  bo  recovered  by  the  owner  of  the  land.  A  decision 
of  the  latter  question  is  not  required  by  the  facts  of  this  case. 
The  statute  invoked  by  the  prosecution  is  one  of  a  very  largo 
class  both  in  England  and  this  country,  and  provides  that  "who- 
ever maliciously  or  mischievously  injures,  or  causes  to  be  in- 
jured, any  property  of  another  or  any  public  property,  is  guilty 
of  malicious  trespass."  Under  similar  statutes  in  England,  it 
has  been  held  that  in  order  to  constitute  the  offense  the  act  must 
be  done  from  malice  against  the  owner.  Russ.  &  Ky.  C.  C.  "73 ; 
2  East,  P.  C.  10G7 ;  3  Chitty,  Cr.  Laws,  1132.  The  doctrine 
has  not  been  carried  to  that  extent  in  this  country,  but  the  au- 
thorities are  nevertheless  substantially  agreed  that  the  malice 
necessary  to  constitute  the  offense  is  something  more  than  the 
malice  which  is  ordinarily  inferred  from  the  wilful  doing  of  an 
unlawful  act  without  excuse.  The  statutes  were  not  intended 
to  make  every  wilful  and  wrongful  act  punishable  as  a  crime, 
but  they  are  devised  to  reach  that  class  of  cases  where  the  act  is 
done  with  a  deliberate  intention  to  injure.  In  Commonivcallh 
V.  Williams,  110  Mess.  401,  which  was  a  prosecution  for  a  wil- 
ful and  malicious  injury  to  a  building,  the  court  say :  "The  jury 
must  be  satisfied  that  the  injury  was  done  o\it  of  a  spirit  of 
cruelty,  hostility,  or  revenge.  This  element  must  exist  in  all 
those  injuries  to  real  or  personal  property  which  are  enumer- 
ated and  made  criminal  in  the  several  statutes.  The  injury 
must  not  only  be  wilful,  that  is  intentional  and  by  design,  as 
distinguished  from  that  which  is  thoughtless  or  accid(>ntal,  but 
it  must  in  addition  be  malicious  in  the  sense  above  given.  The 
wilful  doing  of  an  unlawful  act  without  excuse,  which  is  ordi- 
narih'^  sufficient  to  establish  criminal  malice,  is  not  alone  suffi- 
cient under  these  statutes.  The  act,  although  intentional  and 
unlawful,  is  nothing  more  than  a  civil  injury,  uidess  accom- 
panied with  that  special  malice  which  the  words  'wilful  and  ma- 
licious' imply."  In  Duncan  v.  The  Stale,  49  ^fiss.  331,  which 
was  an  indictment  for  malicious  mischief  in  killing  a  hog,  tho 


I  mm 


STATE  V.  JOHNSON. 


<;oi 


ion  lias  been 
l)erniitted  to 
)lier(l;  and  it 
ch  lands  for 
r  which  dani- 

A  decision 
of  this  case. 
a  very  laryo 
's  that  "wli.)- 
'es  to  be  in- 
•ty,  is  guilty 
England,  it 
the  act  must 
.  C.  C.  073 ; 
riio  doctrine 
but  the  au- 
;  the  malice 
»re  than  the 
doing  of  an 
lot  intended 
as  a  crime, 
re  the  act  is 
imoniccallh 
n  for  a  wil- 

"The  jury 
a  spirit  of 
exist  in  all 
re  ennnier- 
riie  injury 

lesign,  as 
dental,  but 
iven.  The 
ich  is  ordi- 
alono  suffi- 
tional  and 
ess  accom- 
ul  and  ma- 

31,  which 
a  hog,  tho 


jury  returned  a  verdict:  *'"\Ve,  tho  jury,  find  tho  accused  guilty 
of  tho  wilful  and  unlawful  killing  of  the  hog,  but  not  out  of  a 
spirit  of  mischief,  revenge,  or  wanton  cruelty;"  and  this  was 
held  to  be  an  acquittal  of  the  accused  of  the  charge  in  the  indict- 
ment. So  in  Wright  v.  The  Stale,  30  Ga.  325,  which  was  an  in- 
dictment for  malicious  mischief  in  shooting  a  undo,  tho  court 
say:  "Tho  question  to  be  tried  was  not  whether  ho  was  jiisll/lcd 
in  shooting  the  mule,  but  whether  his  motive  in  shoot iii>,'  \v;is 
malicious.  The  question  of  justification  would  be  the  issue  in 
an  action  for  damages  against  him,  but  on  this  indictment  the 
issue  was  malice  or  no  malice.  If  he  shot  from  the  motive  of 
protecting  his  crop,  and  not  from  cither  ill  will  to  the  owner  or 
cruelty  to  the  animal,  his  motive  was  not  malicious  whether  it 
was  justifiable  or  not,  and  his  act  was  not  malicious  mischief.'' 
Tn  a  New  Jersey  case  tho  defendant  was  indicted  for  wilfully 
and  maliciously  tearing  down  an  advertisement  of  sale  set  up 
by  the  sheriff.  His  defense  was  that  he  took  it  down  for  the  pur- 
pose of  showing  it  to  his  counsel  and  from  no  bad  motive.  The 
court  say:  "The  word  'maliciously'  when  used  in  tho  definition 
of  a  statutory  crime,  the  act  forbidden  being  merely  malum  pro- 
hihilum,  has  almost  always  the  effect  of  making  a  bad  intent  or 
evil  mind  a  constituent  of  the  offense.  Tho  whole  doctrine  of 
that  large  class  of  offtmses  falling  under  the  general  denomina- 
tion of  malicious  mischief  is  founded  on  this  theory.  For  ex- 
ample, it  was  declared  by  the  Supreme  Court  of  ^Massachusetts 
in  the  case  of  Commonwealih  v.  Walden,  3  Cush.  558,  that  tlu; 
word  'maliciously'  as  used  in  the  statute  relating  to  malicious 
mischief  was  not  sufficiently  defined  as  'the  wilful  doing  of  an 
act  prohibited  by  law,  and  for  which  the  defendant  has  no  law- 
ful excuse,'  but  that  to  the  contrary,  in  order  to  justify  a  con- 
viction under  the  act  referred  to,  the  jury  must  be  satisfif'd  that 
the  injury  was  done  either  out  of  a  spirit  of  wanton  cnielty  or 
wicked  revenge."  Fohvell  v.  The  State,  49  X.  J.  L.  31.  And 
it  seems  to  be  generally  held  that  in  order  to  bring  an  offense 
under  the  head  of  malicious  mischief  it  must  appear  that  the 
mischief  was  itself  the  object,  of  the  act,  and  not  that  it  was  in- 
cidental to  some  other  act  lawful  or  unlawful.  14  Am.  &  Eng. 
Enc.  of  Law,  11. 

The  case  of  Daily  v.  The  State,  24  L.  R.  A.  724  (51  0.  S. 


002 


AMERICAN  CRIMINAL  REPORTS. 


;    ii      I 


III 


348),  rcHod  upon  by  counsel  for  tlio  State,  was  a  prosecution 
under  nn  Ohio  statute  entirely  dissimilar  to  the  one  under  con- 
sideration. It  provides  that  "whoever  wronjjffully  and  without 
lawful  authority"  injures  any  tree  growinj^  iipon  land  not  his 
own  shall  be  fined,  etc.  The  <pu>stion  whether  the  act  was  done 
maliciously  or  mischievously  did  not  ."rise,  and  even  in  that  caso 
the  trial  court  instructed  that  if  the  defendants  acted  under  an 
honest  belief  that  they  had  a  rifiht  to  cut  the  trees,  they  \v(>re  not 
guilty  under  the  statute;  but  that  if  they  acted  heedlessly,  reck- 
lessly and  carelessly  they  would  be  liable.  And  the  Supreme 
Court  in  attirming  the  judgment  say  that  if  th(\y  did  so  act,  the 
cutting  was  "wrongful"  within  the  meaning  of  the  statute.  The 
decision  has  no  application  to  this  case,  and  we  have  not  found 
any  which  sustain  the  view  of  the  cr>unsel  for  the  State.  In  an 
Indiana  case,  where  the  statute  was  in  the  same  words  as  our 
own,  it  was  contended  by  counsel  as  in  this  ca.se  that  the  act 
having  been  clearly  proven,  malice  would  be  inferred,  liut  tho 
court  say  such  is  not  the  rule  where  the  circumstances  attending 
the  commission  of  the  tres])ass  rebut  the  presumption  of  malice. 
Lossen  v.  The  State,  02  Ind.  440. 

The  agreed  statement  of  facts  in  this  case  shows  that  the  de- 
fendant drove  his  sheej)  across  the  land  of  the  prosecutor  to  a 
railroad  station,  and  that  in  doing  so  they  destroyed  only  so 
much  of  the  grass  as  such  a  band  of  sheep  would  ordinarily  de- 
stroy in  passing  over  it.  There  is  not  only  no  evidence  of  malice 
or  that  mischief  was  the  object  of  the  act,  but  the  tendency  of 
all  the  evidence  is  against  such  a  conclusion.  Admitting,  there- 
fore, for  the  puqioses  of  this  decision,  that  the  act  of  driving 
the  animals  across  the  land  was  a  tresj)ass  for  which  damages 
might  be  recovered  in  a  civil  action,  the  facts  as  agreed  ujion  do 
not  constitute  any  offense  under  the  laws  of  this  State. 

Xo  answer  is  made  to  the  fii-st,  second,  and  third  questions, 
none  being  necessary,  and  the  fourth  is  answered  in  the  negative. 

PoTTKR,  C.  J.,  and  Knight,  J.,  concur. 

Notes  (by  J.  F.  G.). — It  is  a  well-settled  rule  that  the  statutes  re- 
lating to  malicious  mischief  only  apply  to  those  cases  where  a  wilful 
injury  is  done  to  the  property  of  another  as  a  means  of  executing 
vengeance  against  the  owner  of  the  property.  2  East,  C.  L.  1070-71; 
2  Arch.  Cr.  Pr.,  Waterman's  notes,  708;  Chitty's  Blackstone,  134,  p.  243; 


u;u 


STATE  V.  JOHNSON. 


0O3 


.:'.■;: 


prosocution 
r*  uiulcr  con- 
nnd  without 
liuul  not  his 
>ct  was  (loiio 

in  that  cnscj 
ptl  unch'i"  an 
icy  were  not 
llcssly,  rci'k- 
hc  Supremo 
il  so  aft,  tlio 
itatuto.  Tho 
o  not  found 
tato.  In  an 
'ords  as  our 
tliat  tlio  act 
'd.  Mnt  tlio 
C3  attc)idiiij2j 
n  of  malice. 

that  tlio  do- 
^ccutor  to  a 
s'od  only  so 
linarily  do- 
co  of  malice 
tendency  of 
ttiiiir,  there- 
of driving 
'h  damaf>'<^s 
'od  upon  do 

questions, 
w.  negative. 


statutes  re- 
lere  a  wilful 
of  executing 

L.  1070-71; 
,  134,  p.  243, 


iS 


I 


King  V.  Penrcc,  1  Leach,  527;  Kino  v.  Shepherd,  1  Lench,  529;  (tlate 
V.  I'eirce,  7  Ala.  728;  Northrot  v.  State,  43  Ala.  330;  State  v.  B.,  Dev. 
&  Bat.  130;  United  States  v.  Gideon,  1  Minn.  392,  last  par.;  State  v. 
Knsluw,  10  Iowa,  115;  Neicton  v.  State,  3  Tex.  App.  245.  Tho  Ameri- 
can statutes  are  generally  held  to  have  the  same  object  in  view  as  the 
Black  Act  In  England,  which  was  intended  to  apply  to  those  cases 
which  were  inspired  by  a  desire  of  revenge.  As  to  the  original  objects 
of  the  statutes  in  England,  see  State  v.  Wilcux,  3  Yerg.  278;  East, 
C.  L.  1070-71. 

In  malicious  mischief  the  specific  intent  Is  an  essential  element; 
so  where  one  who  had  been  fighting  was  turned  into  the  street,  and 
crossing  picked  up  a  stone  and  threw  it  at  several  persons,  but.  miss- 
ing them,  hit  a  window,  the  jury  having  found  that  the  intention  was 
not  to  break  the  window,  but  to  hit  one  or  more  of  the  persons,  it  was 
held  in  l{eg.  v.  Pemberton,  12  Cox,  C.  C.  C07,  not  to  amount  to  ma- 
licious mischief. 

Prisoners  intentionally  setting  fire  to  a  jail  for  the  purpose  of  effect- 
ing their  escape,  and  not  for  the  purpose  of  burning  the  jail,  were 
held,  in  People  v.  Cotteral,  18  Johns.  115,  not  to  be  guilty  of  arson; 
so  in  Jenhins  v.  State,  53  Ga.  33,  it  was  held  that  burning  a  hole  about 
a  foot  in  diameter  by  a  prisoner  to  effect  his  escape  was  not  an  at- 
tempt to  commit  arson.     See  also  State  v.  Mitchell,  5  Ired.  3.")0. 

A  sailor  desiring  to  steal  some  rum  entered  that  portion  of  the  ship 
where  spirits  were  kept,  and,  getting  a  lighted  match  too  near  the 
stream,  burned  the  ship;  held,  not  arson.  Reg.  v.  Falkner,  3  Cox,  C.  C. 
550. 

Driving  through  the  streets  of  Boston  at  -a  greater  rate  of  speed 
than  permitted  by  the  city  ordinance,  whereby  a  boy  was  knocked 
down,  was  held,  in  Commonwealth  v.  Adams,  114  Mass.  323,  not  to 
amount  to  assault  and  battery. 


I;;    1 


State  v.  Johnson. 

58  Ohio  St.  417—51  N.  E.  Rep.  40. 

Decided  May  10,  1898. 

Mayhem:  Maim:  Definitions  and  distinctions — Common  law  and  stat- 
utory— Intent — Pleading — Assault  and  battery. 

1.  Maim   and  mayhem   are,   at  common   law.  equivalent   words,  and 

mean  the  same  thing;  therefore,  a  count  in  an  indictment  charg- 
ing the  defendant  with  maliciously  biting  the  ear  of  another  with 
intent  to  maim  cannot  be  supported  as  to  the  particular  intent 
charged,  as  the  biting  of  an  ear  does  not,  in  law,  constitute  a 
maiming. 

2.  Nor  can  a  conviction  be  had  on  such  a  count  for  biting  the  ear 

with  intent   to   disfigure,  under  section  7316,  Revised   Statutes, 


'^ 


y 


C04 


AMERICAN  CRIMINAL  UEPORTS. 


permitting  a  conviction  of  an  inferior  degree  of  ttie  offense 
charged,  as  a  biting  with  Intent  to  disflgure  is  not  Inferior  to  a 
biting  with  intent  to  maim,  under  section  C718  (6819?).  Both 
offenses  are  of  the  same  degree.  Barber  v.  State,  39  Ohio  St.  660. 
3.  Under  an  indictment  charging  an  Injury  to  the  person  of  another 
with  intent  to  malm  oi  uiuuTure,  the  party  may  be  convicted  of 
an  assault  and  battery,  under  the  provisions  of  section  7316,  Re- 
vised Statutes;  the  offense  charged  being  simply  an  aggravated 
assault  and  battery. 

(Syllabus  by  the  Court.) 

Exceptions  on  the  part  of  the  State  from  the  Perry  County 
Court  of  Common  Pleas. 

David  Johnson,  indicted  and  tried  in  said  court  for  mayhem, 
was  acquitted  on  the  first  count  and  demurred  to  the  second 
count,  which  demurrer  was  sustained;  henco  these  exceptions  by 
the  prosecuting  attorney  to  test  the  accuracy  of  said  ruling, 
under  the  provisions  of  the  statute. 

T.  B.  Williavis,  Prosecuting  Attorney,  for  the  plaintiff  in 
error. 

Maurice  H.  Donahue,  counsel  appointed  by  the  court  to  argue 
exceptions.  Tlios.  B.  Williams,  Prosecuting  Attorney,  in  sup- 
port of  exceptions. 

MiNsuALL,  J.    David  Johnson  was  prosecuted  on  an  indict- 
ment presented  by  the  grand  jury  of  the  county,  framed  on  the 
provisions  of  sec.  6811),  Revised  Statutes.   The  section,  so  fnr  as 
it  is  applicable  to  this  case,  is  as  follows:  "^Vhoever  w'  \\  nuih 
cious  intent  to  main  or  disfigure,  cuts,  bites,  ^r  ,,(.  nose, 

ear  or  lip,  cuts  or  disables  the  tongue,  puts  oi  dostro^'s  an 

eye,  cuts  off  or  disables  a  limb  or  any  membei  '  inotlv  r  per- 
son," is  declared  guilty  of  an  offense  punishable  by  ii  |)rison- 
ment  in  the  penitentiary.  The  indictment  contained  two  counts. 
In  the  first  it  was  charged  that  he  maliciously  "did  bite  the  ear 
of  one  Reuben  Mitchell  with  intent  to  disfigure;"  and  in  the 
second,  that  he  maliciously  "did  bite  the  ear  of  one  Reuben 
Mitchell  with  intent  to  maim."  A  demurrer  was  sustained  to 
the  second  count,  and,  on  a  plea  of  not  guilty,  he  was  acquil^ted 
on  the  first  count.  The  prosecuting  attorney  took  a  bill  of  ex- 
ceptions to  the  ruling  on  the  demurrer  to  the  second  count,  and 
prosecutes  the  same  here,  under  the  provisions  of  the  statute  in 
that  regard,  to  test  the  accuracy  of  the  ruling. 


of  the  offense 
)t  Inferior  to  a 
(6819?).  Both 
}9  Ohio  St.  G60. 
■son  of  another 
be  convicted  of 
ictlon  7316,  Re- 
an  aggravated 


?crry  County 

for  mnyhcm, 
jO  the  second 
exceptions  by 

said  ruling, 

)  plaintiff  in 

iourt  to  nrgiie 
mey,  in  sup- 
on  an  indict- 
:amod  on  the 
ion,  so  far  as 
^r  Av-  h  ni;i.; 
lie  nose, 
ilestroys  an 
anoth'T  per- 
)y  ii   prison- 
two  counts, 
bite  the  ear 
and  in  the 
one  Reuben 
sustained  to 
as  acquitted 
a  bill  of  cx- 
1  count,  and 
le  statute  in 


The  demurrer  presents  the  question  whether  the  malicious 
biting  of  the  ear  of  another  can  bo  charged  as  dime  with  intent 
to  maim. 

There  is  no  question,  wo  think,  but  that  maim  as  a  nomi, 
and  mayhem,  are  eqtiivalent  words,  or  that  niiiini  is  but  a  newer 
form  of  the  word  mayhem;  the  difference  being  in  the  oilhogm- 
phy,  and  not  in  the  sense.  Webster's  Unabr.  Diet.:  ".Maim" 
as  a  noun  is  there  defined  the  same  as  mayhem:  *'The  privation 
of  the  use  of  a  limb  or  member  of  tlie  body,  by  which  one  is 
rendered  unable  to  defend  himself,  or  to  annoy  his  adversary." 
This  is  the  definition  of  mayhem  at  common  law.  1  East,  P.  ('. 
31)3;  1  Whar.  Cr.  Law,  sec.  581.  Hence  the  verb  "to  maim" 
is  accurately  defined  in  Anderson's  Law  Dictionary  as  follows: 
"To  commit  mayhem."  So,  at  conunon  law,  whatever  the  in- 
juiy  to  any  member  of  the  body  might  be,  if  it  did  not  perma- 
nenth'  affect  the  physical  ability  of  the  person  to  defend  himself, 
or  annoy  his  adversary,  it  did  not  amount  to  mayhem.  Neither 
the  biting  of  an  ear,  nor  the  slitting  of  the  nose,  was  regnrdtnl 
as  an  injury  of  this  character.  Clark's  Cr.  Law,  182;  15  IJI. 
Com.  121.  The  outrage  upon  Sir  John  Coventry,  who  had  been 
set  npon  in  the  street,  and  his  nose  slit,  for  words  spoken  in 
parliament,  led  to  the  adoption  of  what  is  kno\\'n  as  the  Coventry 
Act.  22  &  23  Char.  II.  This  act  made  it  a  felony,  without 
benefit  of  clcrg\',  where  any  one  unlawfully  cut  out  or  disabknl 
the  tongue,  put  out  an  eye,  slit  the  nose,  cut  off  a  nose  or  lip,  or 
cut  off  or  disabled  any  limb  or  member  of  any  other  person,  with 
intent  to  maim  or  disfigure  him.  4  Bl.  Com.  200.  Our  statute 
is  substantially  the  same.  Any  of  the  injuries  there  named, 
done  with  the  intent  "to  maim  or  disfigure,"  is  punishable  by 
imprisonment  in  the  penitentiary.  Whether  it  be  the  biting  of 
an  ear,  or  the  putting  out  of  an  eye,  or  the  cutting  off  of  a  hand, 
each  is  alike  regarded  as  a  crime,  and  punished  the  same  way ; 
or,  in  other  words,  each  is  of  the  same  degree  of  criminality. 
Sec.  73 IG,  Kevised  Statutes. 

The  question  in  the  case  is  whether  the  second  count  in  the 
indictment  charges  an  offense  against  the  laws  of  the  State.  It 
does  not,  for  reasons  stated,  charge  a  maiming.  Then  does  it 
charge  the  offense  of  biting  the  ear  with  intent  to  disfigure? 
Such  intent  is  not  averred  in  the  count;  and,  unless  the  intent 


i 

> 

■I 

i 

■ 

■.ji 

606 


AMERICAN  CRIMINAL  REPORTS. 


■i  J 


to  maim  includes  tlio  intent  to  disfignre,  there  can  !)e  no  convic- 
tion on  the  second  count  for  such  an  offense.  Evidence  of  an  in- 
tention to  disfigure  would  bo  a  fatal  variance  fr(»in  the  intent 
laid  in  the  count.  The  intent  in  this  case  must  depend  upon 
tlie  nature  of  the  injury,  in  connection  with  the  character  of 
the  niend)er  on  which  it  is  inflicted.  If  the  member  be  not  one 
of  use  to  the  ptu'son  in  defending  himself,  an  injury  to  it  can- 
not be  said  to  have  been  done  with  intent  to  maim.  It  is  pro- 
vided among  other  things,  in  section  TolO,  Ilevised  Statutes, 
that,  "When  the  indictment  cliarges  an  offense  inchuling  differ- 
ent degrees,  the  jury  may  find  the  defendant  not  guilty  of  the 
degree  charged  and  guilty  of  an  inferior  degree."  In  Barber  v. 
State,  30  Ohio  St.  (500,  it  was  held  that  the  offense  of  cutting 
with  intent  to  kill,  and  that  of  cutting  with  intent  to  wound, 
are  offenses  of  the  same  degree,  under  the  provisions  of  section 
(iS20,  lievised  Statutes,  making  it  an  offense  for  any  one  to  cut 
another  pei'son  "with  intent  to  kill,  wound  or  maim."  The  in- 
dictment charged  a  cutting  with  intent  to  kill.  The  verdict  of 
the  jury  was,  "'Guilty  of  cutting  with  intent  to  wound."  Tlu^ 
court  held  that  the  indictment  was  not  supported  by  the  verdict, 
for  the  reason  that  the  offense  of  cutting  with  intent  to  wound 
is  not  an  offense  inferior  in  degree  to  tha..  of  cutting  with  intent 
to  kill.  ]iy  a  parity  of  reasoning,  it  follows  that  the  unhiwful 
biting  of  the  ear  with  intent  to  disfignire  is  not  an  offense  in- 
ferior to  that  of  biting  it  with  intent  to  maim;  and  an  indict- 
ment charging  the  biting  to  have  been  done  with  intent  to  maim 
would  not  be  supported  by  evidence  of  an  intent  to  disfigure — 
there  woidd,  in  such  case,  be  a  material  variance  between  the; 
proof  and  the  allegation. 

But  this  does  not  exhaust  the  inquiry,  for  the  question  re- 
mains, does  the  count  charge  any  offense  against  the  laws  of  the 
State?  If  so,  the  court  erred  in  sustaining  a  denuirrer  to  it. 
Xow,  it  seems  a])parent  that  the  malicious  biting  of  the  ear  of 
another,  whether  to  maim  or  disfigure,  amoimts  to  an  assault 
and  battery, — an  offense  inferior  in  degree  to  an  assault  with 
intent  to  nuiim  or  disfigure — the  offense  charged  being  simply 
an  aggravated  fomi  of  assault  and  battery,  of  which  the  defend- 
ant could  have  been  convicted  on  the  count  demurred  to,  on 
proof  of  such  an  offense.     Heller  v.  Stale,  23  Ohio  St.  582; 


'& 


)o  no  convie- 


loneo  of  an  in- 
(»ni  the  intent 

(]epen<l  upon 
^  chavactor  of 
i>pr  be  not  one; 
ury  to  it  t*aii- 
ni.  It  is  pru- 
ised  Statutes, 
„'lu(iiiij>^  (litfer- 
.  guilty  of  the 

In  Barber  r. 
nse  of  cutting 
pnt  to  wound, 
ons  of  section 
iny  one  to  cut 

•  ?J  rill  • 

im.        1  he  111- 

riie  verdict  of 

A'ound."     The 

jy  the  verdict, 

tent  to  wound 

g  with  intent 

the  unhnvful 

an  oflFeiise  in- 

nd  an  indict- 

ritent  to  maim 

to  disfigure — 

between  the 

question  re- 

le  laws  of  the 

niurrer  to  it. 

of  the  ear  of 

to  an  assault 

assault  with 
being  simply 

1  the  defend- 
iiirre(l  to,  on 
hio  St.  582; 


STATE  V.  JACKMAN. 


Ou7 


Barber  v.  State,  supra;  3  Bl.  Com.  121.  For  this  reason  the 
court  erred  in  sustaining  a  demurrer  to  it.  Exceptions  sus- 
tained. 


State  v.  Jack  man. 


69  N.  H.  318—42  L.  R.  A.  438.  41  Atl.  Rep.  347, 

Decided  July  29,  1898. 

MuxicirAL  OuDiNANCics:    Constitutional  law  —  Unequal  distribution  of 

public  burden. 

An  ordinance  requiring  tlie  tenant,  occupant  or  owner,  as  the  case 
miglit  be,  to  remove  snow  from  sidewalks  adjoining  premises, 
and  providing  a  penalty  for  failure  to  do  so,  is  void  for  tlie 
reasons: 

(1)  It   declares  a  duty   whicli   does  not  bear   on  all  citizens 
alike,  being  an  unequal  division  of  public  expense. 

(2)  It  is   in   violation   of   the   fourteenth   amendment   of  the 
United  States  constitution. 

(3)  It  ia  an  effort  to  impose  a  public  burden  on  a  few  individ- 
uals. 

Appeal  from  the  Police  Court  of  Concord. 
Lyman  Jackman,  having  been  convicted  and  fined  five  dollars 
for  violating  an  ordinance,  appeals.     Keversed. 

Sarpent,  HoJIls  &  NiJes,  for  the  State. 
Sauittel  C.  Eastman,  for  the  defendant 

Elodoett,  J.  Among  the  various  purposes  enumerated  in 
the  act  incoii^orating  the  city  of  Concord,  and  for  which  power 
is  expressly  given  the  city  council  to  make  ordinances,  is  that 
"to  compel  all  persons  to  keep  the  snow  .  .  .  from  tlu» 
sidewalks  in  front  of  the  premises  owned  or  occupied  by  them.'' 
Laws  1849,  cli.  SJ]5,  §  17,  p.  810.  The  ordinance  in  question, 
therefore,  having  been  authorized  by  specific  and  definite  leg- 
islative authority,  and  having  also  been  "duly  and  legally 
adojited,"  has  the  ( fFect  of  a  special  law  of  the  legislature  within 
the  limits  of  the  city,  and  with  respect  to  persons  upon  whom  it 
may  lawfully  operate,  and  cannot  be  declared  invalid  except  for 
unconstitutionality.  1  Dil.  ^.hm.  Corp.  (4th  ed.),  §§  319-322, 


■^1 

1 

llil 

i 

■  r . 

.    ;   1  • 

:j; 

.■;\  •  ■  ■   :■ 

s, ,  ■ 
fir; 

;'  1       .' 

■;'■ 

jitej.: 


His 

'if 

'' 

11' 

■    I 

',i 

\i 

'•   >  '■■■ 

1 

)  .uii; 

'i'^ 


608 


AMERICAN  CHIMIN AL  RK1»0IITS. 


327  ct  scq.;  TiKjmnn  v.  Chicmjo,  7S  111.  105  ;  Phillips  r.  Denver, 
19  Col.  179,  41  Am.  St.  Kcp-  -'50;  UroiMyn  v.  Jin'slin,  57 
K  Y.  591,  59(5;  *S7.  J'aul  v.  Caller,  12  Miim.  41.  lJ'..l(,r  our 
statutes,  tlio  duty  of  kccpiug  liifihways  in  repair  and  free  from 
obstruction  by  snow  or  otlier  tliin<;-s  tliat  iini)edo  travel  or  render 
it  dangerous  is  imposed  upon  tlie  municipalities  in  which  they 
are  situate  (1*.  S.,  eh.  7((,  §§  1,  2);  and  this  duty  extends  to 
sidewalks  as  well.  ]I(ill  v.  Manchester,  40  N.  ]I.  410,  415; 
SlereiiJi  v.  Nashua,  40  .\.  ]|.  192,  195.  For  these  purposes, 
nuinici|)alities  an;  empowered  to  "raise  such  sum  as  they  jud'^o 
necessary  for  each  year,"  to  be  assessed  upon  all  the  polls  antl 
estate  subject  to  taxation  therein,  and  nuiy  order  the  same  paid 
in  money,  in  which  case  "the  tax  shall  be  eonnnitted  Ut  the  col- 
lector  of  taxes,  and  be  collected  as  other  t^Mxes,"  or,  if  n(»t  so 
ordered,  it  "may  be  paid  in  labor."    T.  S.,  ch.  7;{,  §§  1,  5,  H. 

Jlurdened  with  this  duty,  an<l  invested  with  this  power,  in  re- 
spect of  highways,  wc  are  of  opinion  that  the  city  of  Concord 
could  not  by  its  ordinance  impose  up»m  the  defendant  the  labor 
or  expense  of  removing  the  snow  from  the  sidmvalk  adjoining 
his  preuiises,  and  which  constitutcHl  a  part  of  the  liighway  it- 
self. Having  contributed  his  proportional  share  of  the  public 
exjiense  of  ke(!ping  the  highway  in  a  suitable  condition  for  the 
public  travel,  wo  are  not  aware  of  any  constitutional  principl»! 
upon  which  more  can  be  lawfully  exacted  of  him.  Xor  should 
there  be.  A  property  owner  has  no  other  or  greater  right  in  or 
to,  or  control  over,  that  part  of  the  public  str(!et  in  front  of  his 
property  than  any  other  part  of  the  highways  of  the  town.  All 
the  streets  of  a  municipality  are  e(]ually  free;  to  the  gcMieral  pub- 
lic, who  at  all  times  are  entitled  to  the  free  and  unobstructed 
use  of  every  foot  of  them.  2  Dill.  ^lun.  Corp.  (4th  ed.),  §§  (!59, 
CSf].  It  is  true  that  the  fee  of  tlie  strecft  may  be,  and  generally 
is,  in  the  adjoining  lot  owner;  but  this  can  be  of  no  conse»pu'nce, 
because  the  easement  over  it  is  in  the  public.  This  being  s<i,  it 
is  plain  that  the  lot  owner  has  no  other  interest  in  the  stri'ct,  as 
such,  than  any  other  citizen  of  the  municipality.  "The  same  i^ 
true  of  the  sidewalk.  It  is  a  part  of  the  street  set  apart  for  the 
exclrsive  use  of  persons  tniveling  on  foot,  and  is  as  much  un<ler 
the  control  (tf  the  municipal  government  as  the  street  itself. 
The  owner  of  the  adjacent  lot  is  under  no  morc  obligation  to 


w  1'.  Denver, 

Jireslin,  57 

I '"'lor  our 

1(1  fi'oo  from 

•cl  or  render 

which  ihev 

y  vxU'UiU  \(> 

.  410,  4ir»; 

so  piU'poHes, 

s  they  ju(l,i;(! 

ho  polls  ami 

e  siiiiio  piiiil 

(I  to  th(>  eol- 

>r,  if  not  so 

)o\ver,  in  ro- 
of Concord 
int  tho  hd)or 
Ik  a<ljoinin;>' 

li^hwiiy  it- 

f  tho  puhlio 

tion  for  t.h<' 

ill  principle* 

Xor  should 

right  in  or 
front  of  his 

town.  All 
fcMiornl  pul>- 
nol)stnicto<l 

d  genonilly 
i»nse»piene(', 
heiiif^  so,  it 
10  street,  O.S" 

'he  Hiiiiie  ir^ 
)iirt  for  tiio 

Mich  nndor 

reet   itself. 

ligation  to 


STATK  V.  JACK'MAN. 


<;oi) 


) 


koep  the  sidewalk  free;  from  ohstrnctioris  Ihan  he  is  iIk!  street 
in  front  of  his  pr<!niis(!S.  ]|(i  may  not  hiinsell'  ohstnict  (fiiher 
so  as  U)  imp(!d(!  travel  on  foot  or  in  cnrringes.  It  will  he  con- 
ceded tho  oitizen  is  not  lionnd  to  keep  Uks  street  in  front  ol"  his 
promisees  free;  from  snow  or  anylhing  else  tliiit  iniglil-  im|>e(|e 
trav(d.  Then,  npoii  what  principle  caw  ho  ho  (mkmI  for  not,  re- 
moving snow  or  other  ohstnict  ion  from  tlu;  sidewalk  in  which  he 
has  no  interest  otlu^'  than  what  Ik;  has  in  conunon  with  all  other 
persons  resident  in  tho  city?  It  is  (terlaiidy  not  ni)on  the  prin- 
ciphi  nndor  which  assessments  are  made  against  llio  owner  for 
hnihiing  sidt^walks  in  front  of  his  |>roperty.  Tho  oases  arc  not 
analog(»ns.  Snch  assossmcints  arc;  nnniitainrMJ  on  t.ho  ground  the 
sidewalk  (adnincos  tho  vaino  of  tho  propt-rty,  and,  to  tli(!  extent 
<d'  \h('  special  honrifits  w)nfernMl,  they  ura  hold  to  Ik;  valid." 
(h-'ullnj  V.  liloomiiujlon,  SS  III.  .'i.^,!,  .5r)(;,  557,  ;{0  Am.  U<'p. 
5<;7  ;  Clnrarjo  v.  O'Jlrir.n,  1 1 1  III.  5:52,  5.'{  Am.  Hop.  (MO.  And, 
certainly,  Ik;  cannot  bo  so  fin(!<l  np<in  any  principle  of  taxation 
which  ohtains  in  this  jurisdiction;  for  "the  imconsi jtntionality 
of  unocpial  taxation  is  t,oo  plainly  d(!clare(l  hy  our  constitution, 
an<l  too  W(dl  8(!ttl(!<l  hy  roporl^id  dc^dsions  made;  during  the  last 
fifly-lhroo  years,  to  Ik;  dehatahle."  liallroad  v.  Stale,  «>()  N.  II. 
H7,  1)4.  And,  "nmler  tho  constitution,  .  .  .  there  is  n(» 
warrant  f<tr  tin;  imposition  of  any  other  tax  than  one  assessed 
np*»n  u  i»roi)ortional  and  (!(pnil  val\iat,ion  of  all  tlir;  diiTerent 
kimis  of  property  on  whicdi  it  is  to  ho  l(;vied"  (Shilc  r.  I'lipiesn 
('(I.,  00  N.  ]!.  219,  240)  ;  and  no  more  can  Ik;  he  upon  any  [)rin- 
ciplo  of  division  of  the  puhlio  expense,  for  "the  unconstitution- 
ality of  an  unequal  division  ot  puhlio  (ixpcnse  among  ,\'ew 
]Ianipshir(!  taxpayers  has  hoon  settled  too  long,  and  hy  too  iriariy 
decisions,  to  ho  a  suhjeot  of  (hihato  or  douht."  Id.  21*!,  [tor 
iJoo,  C.  J. 

True,  the  ordinance  is  not  strictly  a  law  levying  a  tax,  the 
direct  or  princi[)al  ohject  of  which  is  tho  raising  of  revemu! 
{(Idddard,  I'elilwncr,  10  I'ick.  504)  ;  hut  it  is  such  a  law  [)racti- 
oally,  lK)th  in  snhstanoo  and  in  efTect,  and  should  fairly  he  ho  rc- 
gardod.  The  amount  of  expense  frf)m  which  the  city  is  relieved 
hy  the  operation  of  t,he  ordinance  i.s  ef|uivalerit  to  so  much  reve- 
nue derived  from  taxation,  I'lic;  additional  hurden  to  which  the 
lot  owners  are  suhjoctod  is  none  tho  less  a  tax  because  it  is  ex- 
Vou  Xl-;iu' 


610 


AMERICAN  CRIMINAL  REPORTS. 


acted  in  labor,  and  not  in  money  (P.  S.,  cli.  73,  §  8,  before 
cited;  Cooley,  Tax.  12)  ;  and  tlio  fine  imposed  for  its  nonper- 
fonuanee  is  as  useful  to  tbe  city  as  a  tax  of  equal  amount. 
'"Courts  are  not  bound  by  mere  forais,  nor  are  they  to  be  misled 
by  mere  pretenses.  They  are  at  liberty — indeed,  are  under  a 
solenm  duty — to  look  at  the  substance  of  things,  whenever  they 
enter  upon  the  inquiry  whether  the  legislature  has  transcended 
the  limits  of  its  authority."  Mugler  v.  Kansas,  123  U.  S.  G23, 
661.  "In  whatever  language  a  statute  ma^'  be  framed,  its  pur- 
pose must  be  detennined  by  its  natural  and  reasonable  effect ; 
and  such  purpose  must  be  taken  into  consideration  in  passing 
on  its  validity."  Collins  v.  New  Hampshire,  171  U.  S.  30,  and 
authorities  cited.  "Its  constitutionality  must  depend  upon  its 
real  character,  upon  the  end  designed  and  to  be  accomplished, 
and  not  upon  its  title  or  professions."  Pierce  v.  State,  13  N.  II. 
536,  580. 

But  it  makes  no  difference,  so  far  as  the  decision  of  this  case 
is  concerned,  whether  the  ordinance  is  or  is  not  regarded  as  a 
law  levying  a  tax.  It  undeniably  imposes  a  duty  and  operates 
as  a  law  creating  a  burden  which  does  not  boar  upon  all  citizens 
alike,  and  which  makes  an  unequal  division  of  public  expense 
among  taxpayei*s,  in  direct  violation  of  the  principle  of  equality 
which  pervades  the  entire  constitution,  and  to  which  all  other 
purjiosea  are  incidental  and  subordinate.  State  v.  Pdnnoycr,  05 
N.  II.  113,  114,  18  Ath  Rep.  878.  And  not  only  is  the  ordi- 
nance a  palpable  violation  of  the  equality  of  privilege  and  of 
burden  guarantied  by  the  constitution,  but  it  is  the  taking  of 
private  projx^rty  for  public  use,  without  just  compensation,  and 
a  denial  to  the  persons  upon  whom  it  operates  of  the  equal  pro- 
tection of  the  laws,  within  the  meaning  of  the  fourteenth  amend- 
ment of  the  Federal  constitution,  providing  that  no  State  shall 
deprive  any  person  of  property  without  due  process  of  law,  nor 
deny  to  any  person  within  it^^  jurisdiction  the  equal  protection 
of  the  laws.  See  Smyth  r.  Ames,  169  U.  S.  466.  Tlje  amend- 
ment, however,  "adds  nothing  to  the  rights  and  liberties  of 
the  citizens  of  this  State.  It  merely  confii-ms  to  them  by  Fed- 
eral sanction  the  rights  secured  by  the  action  of  their  ancestors 
a  century  ago.  An  enactment  obnoxious  to  this  provision  of 
the  national  constitution  is,  in  New  Hampshire,  no  more  in- 


ii^iiiti 


STATE  V.  JACKMAN. 


Oil 


(  8,  before 
its  nonpcr- 
al  amount. 
3  be  misled 
re  under  a 
mover  they 
ranseended 
U.  S.  G2;}, 
0(1,  its  pur- 
fible  effect; 
in  passing 
S.  30,  and 
id  upon  its 
jomplislied, 
e,  13  X.  II. 

of  this  case 
^ardckl  as  a 
nd  operates 
all  citizens 
ilic  expense 
of  equality 
ih  all  other 
nnoyer,  05 
is  the  ordi- 
ec;e  and  of 
taking  of 
ation,  and 
equal  pro- 
th  aniend- 
State  shall 
of  law,  nor 
protection 
he  amend- 
iberties  of 
m  by  Fed- 
r  ancestors 
ovision  of 
>  more  in- 


offective  than  it  would  bo  in  its  absence."     Slalc  v.  Pcnnoyer, 
snprn,  115. 

Jt  would  seem  unnecessary  to  go  further;  but  the  ordinaneo 
stands  no  better  on  the  ground  that  it  is  an  exercise  of  the  yio- 
lico  power  inherent  in  all  nnniicipal  and  State  governnieiils, 
and  which,  it  may  be  conceded,  ])n>])erly  extends  to  "the  protec- 
tion of  the  public  morals,  the  public  health,  and  the  ])ul>lic 
safety."    Beer  Co.  v.  Masmehii.sells,  \)7  V.  S.  25,  :):];  Min/lrr  r. 
Kanms,  supra.     Nobody  doubts  that,  when  an  occasion  fur  its 
exercise  exists,  the  police  power  may  be  invoked  in  hehalf  of 
these  objects,    lint  it  is  entirely  plain  that  the  ordinance  has  no 
real  or  sid)stantial  relation  to  any  of  them.     It  is  not  an  exer- 
cise of  restraining  or  protective  power,  like  the  dog  law,  so 
called,  or  the  statute  empowering  towns  to  require  buildings  to 
be  provided  with  such  ladders  and  buckets  as  may  ho  necessary 
for  use  in  case  of  lire,  under  a  penalty  of  six  dollars  for  every 
three  months'  neglect,  and  other  enactments  of  like  character, 
cited  by  the  State.     It  is  simjdy  an  unequal  division,  for  ecun- 
omv  and  convenience  only,  of  public  expense  and  public  burden 
among  a  class  of  taxpayers  who  have  not  only  once  contrihiited 
and  borne  their  full  share  agreeably  to  their  constitutional  duty, 
but  who  are  again  reqtiired  to  make  contribution,  not  jjropor- 
tionately  and  according  to  the  valuation  of  their  property  or  the 
benefits  they  receive,  but  dispro])ortionately,  and  solely  accord- 
ing to  the  length  of  the  street  lines  of  their  respective  lots.    This 
is  extortion  and  inequality,  pure  and  simple — and  it  is  nothing 
else.     See  Curry  v.  Spencer,  01  X.  II.  024,  031,  032.     "An  act 
whicb  operates  on  the  rights  or  property  of  oidy  a  few  individu- 
als, without  their  consent,  is  a  vi«dation  of  the  equality  of  priv- 
ileges guarantied  to  evciy  subject"     Merrill  v.  Sherburne,  1 
X.II.  199,212. 

But  suppose  the  legislature,  in  empowering  the  city  of  Con- 
cord to  adopt  the  ordinance,  intende<l  and  understood  it  to  be 
an  act  of  the  protective  power,  and  that  it  may  ])ropcr]y  be  so 
regarded,  it  is,  nevertheless,  such  a  manifest  violation  of  rights 
secured  to  every  citizen  of  the  State  by  the  fundamental  law 
that  it  cannot  be  uidield.  These  rights  are  "paramount  to  all 
governmental  authority;  and  this  constitutional  jirinciplc  has 
never  been  abandoned."     Woosler  v.  Plymoulh,  02  X.  II.  193, 


M 


i  li 


M-* 


012 


AMERICAN  CRIMINAL  REPORTa 


*  1,   t    I 


200,  and  authorities  cited.  They  are  jirivato  rights  of  the  sul)- 
ject,  and  not  public  rights  of  the  State ;  and  no  legislature  can 
invalidate  or  abridge  them.  A  purely  public  burden  cannot  be 
laid  upon  a  few  individuals,  as  here  attempted,  by  an  ordinance 
or  by  any  other  enactment;  nor  can  public  expense  be  ap^wr- 
tioncd  among  them  arbitrarily,  disproportionably,  and  M-ithout 
regard  to  the  value  of  their  property ;  nor  can  they  be  subjected 
to  double  taxation,  in  whatever  form  it  may  be  disguised,  or  bo 
held  responsible  for  the  action  of  the  elements,  which  they  could 
not  control,  and  to  the  production  of  which  they  did  not  even 
theoretically  contribute. 

It  is  true,  nevertheless,  that  in  sevei'al  of  the  States  all  these 
things  are  held  to  be  right  and  proper  as  a  legitimate  exercise  of 
the  police  power  (Goddard,  PetHioncr,  16  Pick.  50-1;  Carllinf/e 
V.  Frederick,  122  X.  Y.  208),  or  the  power  to  remove  nuisances. 
Mai/orv.  Mayherry,  G  num])h.  808.  JJut  even  the  police  power, 
comprehensive  as  it  admittedly  is,  has  its  limitations;  and  in 
this  State,  at  least,  it  is  subordinate  to  the  equality  of  privilege 
and  of  burden  secured  by  the  bill  of  rights  and  guarantied  by 
the  constitution,  in  clearly-expressed  provisions,  which  mean 
just  what  they  declare.  And  in  the  proposition  that,  in  the  ex- 
ercise of  a  power  to  remove  nuisances,  a  private  individual  may 
be  compelled  to  remove  an  obstniction  to  travel  which  he  did 
not  create,  from  premises  over  Avhich  he  has  no  control,  and 
which  it  is  the  statutory  duty  of  the  municipality  to  kecj)  free 
from  obstruction,  we  fail  to  discover  any  merit  except  that  of 
novelty. 

But  there  is  no  occasion  to  dwell  upon  these  or  other  somewhat 
analogous  decisions  to  which  our  attention  has  been  called. 
They  are  plainly  not  in  conformity  with  the  often-declared 
Xew  Hampshire  understanding  of  the  constitutional  principle 
of  equality  and  the  reservation  of  private  rights  of  the  subject, 
which,  as  before  stated,  are  paramount  to  all  governmental  au- 
thority; and  therefore,  while  the  reasoning  on  which  the  de- 
cisions referred  to  are  based  does  not  commend  itself  to  our 
judgment,  it  is  only  necessary  to  say,  in  the  language  of  Doe, 
C.  J.,  that  "any  law  or  practice  of  IMassachusetts,  or  any  other 
jurisdiction,  American  or  foreign,  in  which  the  rule  of  equal 
rights  does  not  prevail,  or  taxation  is  an  exception  to  that  rule. 


f  :  111 


J  of  the  sul)- 
;islature  can 
(ti  cannot  be 
m  ordinance' 
>e  be  apjior- 
and  Avitbout 
be  subjected 
;uised,  or  be 
b  tbey  could 
lid  not  even 

tea  all  tboso 
3  exercise  of 
■i;  Carlhafje 
e  nuisances, 
tolice  power, 
ons ;  and  in 
of  privilege 
larantied  bv 
A'bicb  mean 
t,  in  tbe  ex- 
ividual  may 
bicli  ho  did 

ontrol,  an<l 
;o  keep  free 

opt  that  of 

r  somewhat 
)een  called, 
ten-declared 
al  principle 
the  subject, 
imental  au- 
lich  the  de- 
;self  to  our 
tige  of  Doe, 
r  any  other 
le  of  equal 
0  that  rule, 


is  not  an  authority  on  which  an  unequal  division  of  public  ex- 
pense can  be  made  in  this  State."  State  v.  Express  Co.,  supra, 
250. 

If  one  public  burden  may  be  shifted  from  the  public,  and 
cast  upon  a  certain  class  of  property  owners,  upon  considerations 
of  economy  or  convenience  or  peculiar  interest,  actual  or  sup- 
posed, others  may,  and  doubtless  will,  be,  for  "it  is  a  familiar 
fact  that  the  corporate  conscience  is  ever  inferior  to  the  indi- 
vidual conscience, — that  a  body  of  men  will  commit  as  a  joint 
act  that  Avhich  eveiy  individual  of  them  would  shrink  from  did 
he  feel  pei*sonally  responsible;  but  it  cannot  be  done  in  this 
jurisdiction  until  the  constitutional  reservations  and  guaranties 
intended  "as  a  protection  of  the  subject  against  the  government, 
and  of  the  weak  subject  against  the  powerful  subject,"  are  re- 
garded as  "glittering  generalities"  merely,  and  the  reported  de- 
cisions of  three  generations  of  coui'ts  are  reversed.  That  time 
may  come,  but  it  has  not  yet  arrived.  Appeal  sustained.  Judg- 
ment for  defendant. 

Wallace,  J.,  was  absent.    The  others  concurred. 

Note. — Compare  with  the  opinion  rendered  July  24,  1903,  in  State  v. 
McMahon  (Conn.),  55  Atl.  Rep.  591,  where  the  above  case  was  cited, 
but  the  doctrine  announced  in  it  disapproved. 


Carr  v.  State. 

106  Ga.  737—32  S.  E.  Rep.  844. 

Decided  March  15,  1899. 

New  Trial:   Netcly-discovered  evidence. 

When  material  evidence,  not  merely  cumulative  or  impeaching  in 
its  character,  but  relating  to  new  and  important  facts,  is  discov- 
ered after  a  trial,  and  it  appears  that  the  failure  to  discover  it 
before  trial  was  not  due  to  a  want  of  diligence,  and  when  the  na- 
ture of  the  newly-discovered  evidence  is  such  that  it  might,  on 
another  hearing,  produce  a  different  verdict,  a  motion  for  a  new 
trial,  based  on  the  ground  of  such  newly-discovered  evidence, 
should  be  granted. 

(Syllabus  by  the  Court.) 


C14 


AMERICAN  CRIMINAL  REPORTa 


Error  to  Superior  Court  of  Laurens  County;  Hon.  J.  S. 
Candler,  Judge. 

William  Carr,  being  convicted  of  murder,  brings  error.  Re- 
versed. 

Howard  &  Armi^lead  and  Jos.  K.  Hines,  for  the  plaintiff  in 
error. 

J.  M.  Terrell,  Atty.  Gen.,  and  //.  0.  Lewis,  Solctr.  Gen.,  for 
the  State. 


Little,  J.  We  find  it  unnecessary  to  consider  at  length  any 
of  the  grounds  of  the  motion  for  new  trial,  except  those  based  on 
newly-discovered  evidence.  No  one  was  present  at  the  time  of 
the  homicide  except  tlie  deceased  and  the  accused.  The  State 
insisted  that  the  circumstances  of  the  killing,  with  the  previous 
conduct  of  the  accused  to  the  deceased,  and  his  threats,  couplctl 
with  the  nature  of  the  wound,  the  explanation  given  by  the  ac- 
cused when  the  homicide  was  ascertained,  and  other  circnui- 
stances,  aiithorizod  the  jury  to  find  the  defendant  guilty.  The 
accused,  on  his  part,  contended  that  the  homicide  was  the  rosiilt 
of  accident,  and  detailed  at  length  the  manner  in  which  the 
wound  was  inflicted. 

We  are  not  prepared  to  say  that  the  verdict,  as  rendered  by 
the  jury,  was  without  evidence  to  supjjort  it,  nor  that  it  was  con- 
trary to  law.  Nor  do  wg  think  that  the  court  erred  in  the  ad- 
mission of  the  evidence  complained  of,  because  of  the  fact  that 
there  ^vere  no  witnesses  to  the  homicide,  and  the  manner  in 
which  it  was  done  depended  entirely  upon  circumstances.  All 
facts  Avhich  Avent  to  the  nature  of  the  woiind,  where  the  ball  en- 
tered the  body,  where  it  made  its  exit,  the  nature  and  condition 
of  the  Aveapon  used,  were  all  circumstances  which  so  intimately 
related  to  the  killing  that  they  should  be  carefully  considered 
in  detenu ining  the  truth  or  falsity  of  the  accotmt  given  by  the 
accused  about  the  real  manner  in  which  the  wound  was  received 
by  the  deceased.  The  wound  was  inflicted  with  a  Winchester 
rifle,  and  it  was  claimed  by  the  accused  that  at  the  time  the  gun 
fired  he  was  sitting  about  a  foot  or  a  foot  and  a  half  from  a  tree ; 
that  the  Avoman  killed  Avas  lying  on  the  ground  on  her  right  side, 
with  her  elboAv  resting  on  the  ground,  and  her  head  on  her  hand  j 


on.  J.  S. 
rror.    Re- 
tt 
laintiff  in 

Gen.,  for 


ength  any 
B  based  on 
le  time  of 
The  State 
3  previous 
s,  coupled 
by  tlie  ac- 
!r  eii'cnni- 
ilty.  The 
the  result 
which  the 

iidered  by 
t  was  con- 
in  the  ad- 
!  fact  that 
lanner  in 
tices.  All 
le  ball  en- 
condition 
ntiniately 
onsidered 
on  by  the 
s  received 
rinchester 
le  the  gun 
)m  a  tree ; 
right  side, 
her  hand ; 


CARR  V.  STATE. 


C15 


that  he  had  the  rifle  across  his  lap,  and  did  not  know  that  it  was 
even  pointing  towards  her;  that  his  left  side  was  to  hor  face; 
that  the  cat^'h  of  the  guard  did  not  hold  it  very  tight,  and  he  was 
working  the  guard  with  his  finger  when  the  gun  fired.  On  the 
trial  one  witness  testified,  in  rebuttal  of  this  theory,  that  in  re- 
versing the  lever  of  a  AVinchester  rifle  the  guard  would  have  to 
be  moved  six  or  eight  inches,  and  that  before  the  lever  is  moved, 
and  it  is  put  in  that  position,  it  is  necessary  that  the  gun  should 
be  cocked.  AnoUier  witness  testified  on  this  subject  that  he  was 
acquainted  with  the  Winchester  rifle,  and  knew  how  that  weapon 
is  shot,  loaded,  and  reloaded;  that  it  was  not  possible  to  fire  a 
Winchest<'r  rifle  by  moving  the  guard;  that  then'  is  a  safety 
plug  that  drops  behind  the  trigger,  and  when  you  push  tli(>  guard 
back  in  position  it  moves  the  l)lng;  when  you  throw  tlu."  guard 
forward,  as  soon  as  you  start  it  forward,  the  plug  dro|)s  down 
behind  the  trigg'or,  and  prevents  the  trigger  from  moving;  that, 
when  you  press  the  guard  down,  a  little  mechanism  that  moves 
the  cartridge  would  keep  it  frfnii  falling  out  of  place;  that  all 
Winchester  rifles  are  miide  witli  that  plug;  that  a  Winchester 
rifle  was  a  patent  gun,  and  that  the  cartridge  would  not  get  in 
position  and  fire  until  you  got  the  giuird  back.  It  will  he  notcil 
that  the  defendant  claimed  that  the  gun,  for  some  unaccouut- 
able  reason,  fired  at  a  time  when  he  was  not  expecting  it,  and 
when  he  was  only  working  the  guard.*  The  object  of  the  evi- 
dence introduced  evidently  was  to  contradict  the  account  which 
the  defendant  gave  of  the  manner  in  which  the  gun  fired,  and  to 
show  that  a  Winchester  ritle  could  not  be  fired  in  the  manner 
in  which  the  defendant  claimed  that  this  gun  was  discharged. 
This  evidence  must  have  had  a  veiy  important  bearing  on  the 
ease. 

The  newly-discovered  evidence,  as  set  out  in  the  aflidavit  of 
Robert  Shoemake,  is  to  the  effect  that  he  Avas  the  owner  of  the 
gun  Avith  which  the  deceased  was  killed;  that  he  had  loaned  this 
gun  to  the  accused  prior  to  the  homicide;  that  it  was  defective 
in  some  way  in  the  lock,  and,  iK'fore  the  occasion  of  the  homi- 
cide, the  gun,  while  being  handled,  had  been  discharged  without 
any  apparent  cause;  at  other  times  the  gun  was  used  for  a  con- 
siderable time  Avithout  such  an  accident.  It  Avas  also,  at  the 
trial,  an  important  fact  to  be  ascertained  as  to  Avhere  the  ball 


1 1  I 


«iii 


,, 


1 

rr 

p 

1 

i    'l 

::|, 

'1 

■1 

.( V'' 


'f: 


lift; 


If  -LIe, 


<  ;?*' 


I 


C16 


AMERICAN  CRIMINAL  REPORTa 


from  tlio  riflo  piitorod  the  lioiid  of  tlin  tloocnsoJ.  TJiulor  tlio  nc- 
coinit  given  by  tho  accuso(l  when  ho  roportcd  the  homicido, 
iipcossiirily  the  ball  must  have  entered  tho  front  part  of  hor 
head.  At  the  trial,  a  witness,  who  was  a  pliysician,  testified  as 
foHows  on  that  subject:  "I  examined  tho  wound.  There  Avas 
no  powder  burn  about  tho  face.  The  ball  passed  betwerMi  two  of 
her  fingers  a  little  to  the  right  of  the  left  eye,  and  came  out  aboiit 
an  inch  and  a  half  lower  than  where  it  went  in.  I  examined 
the  wound  on  tho  other  side.  From  what  I  know  of  gnn-slmt 
wounds,  I  would  say  the  ball  went  in  frona  behind.  It  generally 
makes  a  larger  hole  at  the  exit  than  where  it  goes  in.  1  am  a 
practicing  physician.  If  I  had  been  called  there  to  make  a  de- 
cision as  to  which  side  of  that  head  that  ball  entered,  I  would 
have  said  it  went  in  at  the  back,  and  came  out  in  fnmt."  This, 
and  other  similar  evidence  tending  to  prove  the  same  thing,  must 
also  have  been  very'  material  in  the  case,  because,  if  the  ball 
entered  the  back  of  the  head,  and  came  out  in  front,  necessarily 
the  account  which  the  accused  gave  of  the  position  the  woman 
was  in,  and  the  manner  in  which  the  wound  was  infiicted,  was 
imtrue,  and  tended  to  show  that  it  was  otherwise  infiicted,  anil 
that  the  shot  was  fired  from  her  rear. 

The  newly-discovered  evidence  set  out  in  the  affidavit  of 
W.  W.  Bailey,  W.  J.  Ferdham,  T.  D.  Bailey,  I.  B.  Ilitson,  A.  J. 
Weaver,  and  Enoch  'M.  Howard  dis])utes  this  theory  of  tho 
State.  The  last-named  five  afiiants  say  that  they  served  as 
jurors  on  the  inquest  held  over  the  body  of  the  deceased  the  day 
after  the  homieide ;  that  they  did  not  call  a  physician  to  make  an 
examination  of  the  wound  on  the  body  of  the  deceased,  but  they 
themselves  carefully  examined  such  wound,  both  in  the  front 
and  back  of  the  head;  that  they  found  what  appeared  plainly  a 
large  hole  in  the  front  of  the  skull,  and,  after  shaving  the  hair 
from  the  back  of  her  head,  found  that  the  back  of  the  head  was 
shattered  almost  to  pieces,  with  pieces  of  bones  and  brain  in  the 
hair,  which  convinced  these  jurors  that  the  ball  entered  the  front 
of  the  head.  Here,  then,  was  testimony  directly  negativing  tho 
theory  of  the  State  as  to  where  the  ball  entered  the  head,  and 
tending  to  show,  to  some  extent  at  least,  that  the  wound  might 
have  been  inflicted  while  the  deceased  was  in  the  position  which 
the  defendant  described  when  he  called  for  assistance.     These 


lulor  the  nc- 

0  hoiiii('l<lo, 
pnrt  of  licr 
,  tostifi(><l  iis 

Thoro  AViiH 
wren  two  of 
tio  out  iilxtut 

1  oxniuincd 
of  gun-shot 
It  gononilly 
in.     r  nni  ii 


CARR  V.  STATE. 


017 


ninko  a  <!(■- 

^(1,  I  would 

mt."    Tlii^, 

thine;,  nuist 

if  the  hi.  11 

necessarily 

the  woninn                   i 

flictetl,  was 

tlict(Ml,  and 

afti(hivit  of 

itson,  A.  J. 

ory  of  the 

served  as 

sed  the  day 

to  make  an 

d,  hut  they 

1  tlie  front 

il  phiinly  a 

ig  the  luiir 

e  head  was 

rain  in  the 

d  the  front 

ativing  the 

head,  and 

und  niiglit 

tioji  wliich 

ce.     These 

aflSanta  further  say  that  they  never  eommunieated  tliese  facts  to 
tho  defenchint,  nor  to  his  attorneys,  lu-forc  or  at  the  time  of  Uio 
trial.  Accompanying  the  allidavils  of  tlus  wilncsscs  hy  \vliom 
this  newly-discovered  evidence  is  expected  to  he  proven  ant  tlin 
aifi<lavits  of  accused  that  ho  did  not  know  of  tho  cvi<lcii('t'  of 
either  of  these  witnesses,  nor  could  the  same  liave  heen  procureil 
hy  tho  exercise  of  duo  diligeuco.  Also  ailidavits  of  the  siiiiio 
tenor  from  his  counsel. 

It  was,  of  course,  possihlo,  with  tho  notivo  diligence  which 
the  defendant  and  his  counsel  should  use  in  ])r(!paring  a  case 
of  this  nature  for  trial,  to  have  ohtained  a  description  of  the 
weapon  with  which  tho  Avound  was  inflicted  from  tho  owner; 
hut,  without  anything  t/O  excite  their  inquiries  in  this  direction, 
we  are  not  prepared  to  say  that  this  informati(jn  was  not  oh- 
tained hecause  of  the  want  of  duo  diligence.  As  to  tho  per- 
sonal examination  of  the  W(»und  made  hy  tho  five  witnesses  who 
seiTod  on  tho  coroner's  jury,  we  cannot  see  how  the  failure  to 
procure  their  testimony  residt^d  from  any  want  of  diligence. 
They  were  not  witn(>sses  whoso  testimony  would  appear  in  tho 
rejiort  of  the  evidence  made  hy  the  coroner,  hut  jurors  charged 
with  the  duty  of  asau-taining  the  cause  of  death,  and  who,  in  tho 
discharge  of  their  duties,  made  a  carefid  personal  examination, 
the  result  of  which  was  not  communicated  to  the  accused  or 
his  counsel  hefore  nor  at  tho  trial.  A\^c  therefore  think  that 
this  alleged  newly-discovered  evidence  should  not  ho  disregarded 
on  the  ground  that  due  diligence  was  not  shown  in  procuring  it, 
nor  do  we  think  that  it  is  merely  cumulative  in  its  character. 
So  far  as  appears  in  the  record,  there  was  no  evidence  tliat  tho 
rifle  was  out  of  condition,  nor  any  relating  to  this  condition.  It 
is  true  that  during  the  examination  of  one  or  more  of  tho  wit- 
nesses who  testified  as  to  the  construction  of  a  Winchester  rifle, 
and  the  only  manner  in  which  it  could  he  fired,  questions  were 
asked  in  relation  to  whether  their  testimony  would  apply  to  this 
character  of  ami  if  the  lock  or  working  parts  should  he  rusty, 
etc. ;  hut  nothing  which  we  have  ohserved,  as  to  tho  condition  of 
the  working  parts  of  this  rifle,  which  would  or  would  not  cause 
it,  by  other  means  than  those  testified  to,  to  ho  discharged.  Cer- 
tainly, therefore,  some  of  this  evidence  was  not  camulative  at 
all,  but  new  and  original,  as  well  as  very  material.    The  rule  in 


:iirU 


018 


AMERICAN  CRIMINAL  REPORTS. 


relation  to  the  j^rnnt  of  new  trials  for  nowly-discovcrcJ  cvidonco 
is  that  it  must  bo  niatorial,  not  merely  cumulative,  in  its  char- 
acter, but  relating  to  new  and  nuiterial  facts,  shall  bo  discov- 
ered by  the  apijlicant  after  the  rendition  of  the  verdict,  and 
brought  to  the  notice  of  the  court  within  a  proper  time.  When 
all  this  appears,  it  is  not  absolutely  reijuired  that  a  new  trial 
shall  be  granted.  The  j)rovision  of  law  is  that,  when  these  req- 
uisites ap[)ear,  a  new  trial  may  l)e  granted.  Penal  Code,  §  lOUl. 
In  the  case  of  Thompson  v.  ISfatc,  (50  Ga.  Glf>,  this  court  ruled 
that  the  newly-discovered  evidence,  in  view  of  the  evidence  had 
on  a  former  trial,  which  might  produce  a  different  resiilt,  being 
material,  and  not  merely  ciuuulative,  was  suilicient  to  authorizo 
the  grant  of  a  new  trial.  In  Dale  v.  Slate,  88  Ga.  5r>2,  this  court 
ordered  a  new  trial  on  the  ground  that  the  ends  of  justice  wo'.id 
be  promoted  by  allowing  the  defendant  an  opportunity  to  avail 
himself  of  the  newlv-discovered  evidence.  And  so  we  think 
here.  The  truth  of  the  matter  must  necessarily  be  ascertaine<l 
by  the  jury,  either  through  the  statement  of  ihe  accused,  or  from 
the  circumstances  which  convincingly  show  that  statement  to 
be  untnio.  It  is  an  important  case  to  the  defendant,  and  ono 
in  which  he  is  entitled  to  have  the  benefit  of  all  accessible  legal 
evidence,  and  it  may  be  that,  if  this  evidence  had  been  before  the 
jury,  a  different  result  would  have  been  reached;  at  least,  the 
jury,  having  this  evidence  before  them,  might  have  drawn  more 
or  less  corroboration  of  the  account  given  by  the  defendant  im- 
mediately after  the  homicide,  as  well  as  bis  statement  made  at 
the  trial.  We  do  not  go  to  the  extent  of  saying  that  this  evi- 
dence should  or  would  have  controlled  the  verdict.  The  vahic  of 
it  was  for  the  jury.  With  it  before  them,  they  must  still  decide 
the  tnith  of  the  issue.  What  we  do  say  is  that,  the  evidence  ap- 
pearing to  be  material,  and  not  merely  cumulative,  having  been 
shown  to  be  newly  discovered,  and  without  want  of  diligence  in 
its  discovery,  a  new  trial  should  have  l)een  granted,  in  order  to 
allow  the  jury  to  pass  on  it  in  connection  with  the  other  evidenco 
in  the  case,  and  to  say,  after  due  consideration  of  all  the  facts 
attendant,  whether  the  defendant  is  or  is  not  g\iilty.  In  our 
opinion,  the  court  erred  in  overruling  the  motion  for  new  trial 
on  the  ground  of  newly-discovered  evidence.  Judgment  re- 
versed.   All  the  justices  concurring. 


!red  evidence 

,  in  its  char- 

lU  bo  dirtcov- 

verdict,  and 

time.    When 

a  new  trial 

en  tlu'HO  re(i- 

;ode,  §  1001. 

i  court  ruled 

L'videnec  had 

residt,  being 

to  aiitliorizo 

>2,  this  court 

ustiee  Avo'.id 

nity  to  a VII 11 

80  wo  think 

'  ascertained 

ised,  or  from 

statement  to 

nit,  and  ono 

'ossible  lefjal 

'n  before  the 

at  least,  the 

drawn  more 

fendant  im- 

pnt  made  at 

lat  this  evi- 

'he  value  of 

still  decide 

vidence  ap- 

laving  been 

diligence  in 

in  order  to 

ler  evidence 

jll  the  facts 

y.     In  our 

r  new  trial 

nlgiuent  re- 


MATTHEW8  v.  STATE.  qiq 

!Mattiikws  v.  State.  , 

40  Tex.  Crlm.  Rep.  316—50  S.  W.  Rep.  368. 

Decided  A'urch  22,  1899. 

New  Tt.iai:  Order  granting  new  trial  cannot  be  vacated— Bill  of  ex- 
ceptions. 

1.  An  order  granting  a  new  trial  is  final,  and  cannot  be  vacated  by 

the  court  entering  it,  even  at  the  same  term. 

2.  Qjutiref  Can  an  order  overruling  a  motion  for  a  new  trial  be  va- 

cated? 

3.  Defendant's  counsel,  having  received  notice  that  the  motion  for  a 

new  trial  would  be  reheard,  was  not  deprived  of  an  opportunity 
to  prepare  bill  of  exceptions. 

Appeal  from  the  District  Court  of  Tarrant  County;  Hon. 
Irby  Uunklin,  Judge. 

J).  L.  Matthews,  being  convicted  of  cattle  theft,  appeals.  Ile- 
versed. 

Jas.  S.  Davis  and  0.  S.  Laltimore,  for  the  appellant. 
Rubl.  A.  John,  Asst.  Atty.  (Jen.,  for  the  State. 

Ukooks,  J.  Appellant  was  convicted  of  the  theft  of  cattle, 
his  punishment  assessed  at  two  and  a  half  years'  coutinemeut 
in  the  penitentiary,  and  he  prosecutes  this  appeal. 

The  only  question  presented  for  our  consideration  is  the  ac- 
tion of  the  court  overruling  its  former  action  granting  a  new 
trial  and  then  passing  sentence  on  appellant.  Accompanying 
the  transcript  are  certain  affidavits  of  ajipellant  which  show  the 
action  of  the  court  more  in  detail  than  the  record.  It  is  shown 
that  on  the  last  day  of  the  term  of  the  court  (appellant  having 
been  convicted  at  a  previous  day  of  the  tenn  of  the  offense  of 
theft  of  cattle)  appellant's  motion  for  a  new  trial  was  granted, 
and  an  order  to  that  effect  entered  upon  the  minutes  of  the  court, 
r>etween  nine  and  ten  o'clock  on  the  night  of  that  day,  and  just 
before  adjournment,  appellant  was  brought  into  court  from  the 
jail,  and  the  previous  order  of  the  court  granting  him  a  new 
trial  was  set  aside,  and  the  court  then  proceeded  to  pass  sentence 
upon  him.  The  order  of  the  court  is  in  these  words:  "Xow 
comes  James  W.  Swayne,  prosecuting  the  pleas  of  the  State, 
also  the  defendant,  D.  L.  Matthews,  in  person,  and  it  appearing 


i      ■  ■• 


ini 


If 


i 


itv 


tm '' 


f\ 


G20 


AMERICAN  CRIMINAL  REPORTS. 


to  the  court  that  tlio  order  licrotoforo  tl):s  «l)iv  iniulc  soltiiiir  asiilo 
lli(^  judgiiKMit  iiikI  grant  ill*:!;  a  new  ti-ial  in  this  causo  wan  made 
under  a  uiisapjirclicnsion  of  tlir  ovidcnco  ndiiplMincd  of  l»y  de- 
fendant in  his  motion  for  new  trial,  it  is  considered  and  ordered 
that  sai<l  ord<!r  granting  new  trial  is  liereliy  set  aside,  and  fur 
naught  held,  on  the  court's  own  iiioliun,  to  which  d(d'en<hiiit  ex- 
cepts. And  then  came  on  to  he  heard  the  defendant's  motion  for 
a  new  trial,  file(l  herein,  and,  the  court  liaviiijr  hejird  same,  and 
heing  fully  advised  in  the  premises,  it  is  cuiisidere(l  and  or- 
dered by  the  court  that  said  mot  inn  he,  and  the  same  is  hereliy, 
overruled;  to  which  action  and  ruling  of  tlui  court  tli(>  dereiidaiif, 
in  open  court  excepts,  and  gives  notices  of  ajipeal  to  the  cnurt  of 
criminal  ap[)eals  of  the  Stat(>  of  'i'exas;  and  on  a])pIication 
therefor  it  is  ordered  that  defendant  have*  ten  <Iays  from  and 
after  adjournment  of  this  te'riii  f)f  court  in  which  to  prepare  and 
tile  a  statement,  of  fa(tls  in  this  cause."  While  the  record  <loeH 
not  show  that  appellant's  counsel  was  notilietl,  the  agreement 
accompanying  th(^  allidavits  does  show  that  aitp<dlant,'s  counsel 
was  iioti(i(!(l  that  tin;  court  would  proc(MMl  U>  rehear  the;  case,  hut 
liis  couiisfd  faii'id  to  put  in  an  appearance!.  Ap|»ellaiit  assigns 
as  error  th>'  action  of  tlu;  (;ourt  in  granting  him  a  new  trial,  aii<l 
suhsetpiently  setting  aside;  this  order,  and  claims  that  tim  (tourt, 
was  without  authorily  to  do  tJiis,  and  that  it  doprive<l  him  of 
preparing  aiul  filing  ccu'tain  Itiils  of  exception.  it  does  not 
occur  to  us  that,  inasmuch  as  appellant's  counsed  was  notilie(|, 
and  failed  to  ajipear,  lie  can  he  heanl  to  make  this  contention  as 
to  liis  hills  of  (exception. 

I'lie  important  question,  however,  hero  prr'senled  is  as  to  tho 
action  of  t,ho  court  in  rfjconsidering  its  grantin;^  of  a  new  trial, 
and  s((tting  the  same  asitle.  This  master  was  ju'csentecl  to  us  in 
this  same  case  on  liahcas  corpus  at  i  former  day  of  this  term 
(sec  Ex  parle  MdlUiv.ws  [No.  ],8<i();  decidcjd  Fehniary  1."), 
1899],  49  S.  W.  Ptep.  02;J),  »iid  wc;  tfhen;  stated  that,  in  our 
opinion,  it  was  competent  for  the  c()iirt  to  do  this,  having  full 
j)owcr  over  its  orders  and  judgiuents  nuulo  during  llu'  term; 
and  wc  cited  a  numher  of  civil  (jases.  As  to  civil  cases  th<'re  is 
no  douht  this  doctrine  is  correct,  hut  W(!  can  find  no  criminal 
case  in  which  tho  saiiK?  rule  has  heen  adopteil ;  iin<I,  if  we  recur 
to  our  criminal  statutes  on  tlu;  suhject,  it  would  ap|)ear  that  the 


soltiiif^aaido 
is(«  \\»H  madi! 
kmI  of  by  (Ic- 
I  niul  ordered 
side,  niid  lor 
lereiidiint,  ex- 
,'s  molioii  I'm* 
I'd  siiiiie,  Mini 
ered  iiiid  (tr- 
ue is  liereliy, 
li(>  derelidiiiit, 
»  lii(>  court,  of 
i  )i])|)liealioii 
ys  from  and 
)  prepare  and 
1  i"e('or(l  does 
le  a^^reeiiieiit, 
aiitAs  coniis(d 
lli(!  case,  l)iit, 
•llant,  assij^'iis 
ew  trial,  and 
Mil  the  coiirl, 
rive(l  liiiii  (i[' 
Jt,  does  not, 
was  notilieil, 
Diiteiitioii  as 

is  as  to  tlio 
a  Tiew  trial, 
te(l  to  IIS  in 
)f  this  term 
'hriiary  J."), 
tliat:,  ill  our 

liavinir  full 
'j;  tlie  leriii  ; 
uses  there  is 
no  criminal 

if  we  recur 
lear  tlial  tla; 


MATTlli'.WS   r.  STATIl. 


<:iii 


grniilinj.^  of  a  new  trial  in  a  erimiiiiil  case  is  a  (Inalily,  and  not 
Hiihjecl,  (^»  a  rec<nisideration  dnriiif!,-  the  teriii.     Our  slatiiles  pro- 
vide; that,  a  new  trial  is  the  reiie;iriiii>'  of  ;i  crimiiinl  iiclion  nfier 
verdict,  Ix'fore  the  jnil^c  or  aimllicr  jury,  as  the  ciise  niiiy  he; 
and  l.iiat.  in  no  (fuse  shall  a  new  t  rial  he  f;rjintc<l  where  llie  verdirl, 
r)r  jud<;iiieiit  has  heen   rendereil   for  the  defendaiil.      New  trials 
must,  he  applied   for  within   Iwo  d;iys  iifler  cimvicl  imi,  and   mII 
motions  lor  new  trials  sIimII  he  in  wrilin<!;,  iind  sladl  sel    I'l.rlli 
delinitely  the  <:;rouiids  upon  which  the  new  Irinl  is  n-^ked.     The 
Slate  may  Jake  issue  with  the  defendiint   iipoii  the  Iriilh  of  ihe 
causes  set,  forth   in  the   motion    lor  new   trial,  :iiid   in  such  cise 
the  jii<l^<'  shall  ln'ar  evi<lence,  hy  ani<lavit.  or  otherwise,  :iiid  de- 
termiiK!  liie  i.s.siie.     In  i;ranl  in^' or  refusing- a  new  trial  the  jiidnc. 
shall  not;  sum  up  or  comment   on  the  evidence  in  the  ca-c,  Iml, 
shall  simply  <i,rant.  or  nd'iise  ihe  motion,  willioiil    prejudice  to 
either  the  State dr  the  d<'fendant.     The  clfecl  of  a   lU'W  (rial   is 
to  place  the  caus(!  in   the  same  posilioii   in  which   it,  was  hr'fore 
any  trial  had  t,a!:en  place.     The  former  conviclion  shall  iml  he 
regarded  as  any  |iresuinption  <>{'  ^iiill,  nor  .'-hall  it.  he  alluded  lo 
in  the  artiunient.      If  a  new  trial  shall  he  refuse(|,  a  slalemeiil. 
of  the   facts  shall  \>('  drawn,  and  cerlilied   lo  hy  lh(^  jnd^if,  clc 
See  Code  Criiii.    I'roc.,   title  It,  cli.    !.      It   would   app<'ar   from 
the~e  provisions  <A'  our  (,'od(!  that  iIk'  aclion  of  ihc  <viuit  on  iIk; 
motion  oufiht.  to  he  rciianled  as  linal,  aiel  thai,  the  court   would 
have   no   authority,   after   he   had   ;;raiiled    the   motion    for   new 
trial,  afterwards,  on  the  saiii*!  day  or  on  some  olhcr  day  <>f  the 
term,  to  a^ain  call  the  ca.se  up,  .'-••I.  the  order  aside  ^rantiiif^  the 
motion,  and  overrule  it,  and   then   proceed  te  senlence  the  de 
fendant.      'i'his   view   is    further  manifested   hy  a   rel'ereiice  to 
other    provisions   of   the    slatute.       l''or    instance,    siippo-e    at    a 
former   day   of   the   tz-riu,   dil'endant,   hein;.';  on    hail,    the   courl, 
Hhoiild  have  j^ranted  his  motion   for  a  new  trial,  the  elfeci  ol  the 
order  fi-rantiiif^  such  motion  would  he  to  enlar^'-e  the  did'endanl 
on  his  hail,  or,  aftr-r  the  frrant  in;.^  of  the  oi'<ler,  the  defemhiiit. 
would   he  authorizetl   to  f.nve  hail.      Now,  .Hippose   in  siich  ca-e 
tlu!  C'Uirt,  at,  a  Kuhscfpient,  day  of  the  term,  de  ind  to  rc'all  his 
former  order,  and  overrule  it,  what,  writ  can  the  coui-t,  i-nie  lo 
hrin;,'  the  defendant,  hefore  it   in  ordf  r  lo  r'<'ori-ider  the  motion 
for  new  trial '^     ^'o  writ  is  provided  hy  tlir-  -latute,  and  we  lake 


t  .'jjintr.n 


\t 

1 

%    <.<ll 

622 


AMERICAN  CRIMINAL  REPORTS. 


it  that  there  would  be  no  procedure  to  arrest  the  defendant, 
and  brin^  him  before  the  court,  in  order  to  review  the  former 
action  of  the  court  granting  a  new  triah  So  far  as  we  know, 
this  is  a  case  of  first  impression  in  this  State ;  and  from  a  read- 
ing of  the  statutes,  in  connection  with  other  ])rovisions,  w>  \v- 
lieve  it  was  intended  that  the  action  of  tlie  court  in  l;i  .^  ,i 
new  trial  should  be  final.  We  are  not  now  holding  (because  that 
(juestion  is  not  before  us)  that  it  would  not  be  competent  for 
the  court,  afte.-  having  overniled  the  motion  for  new  trial  at  a 
former  day  of  the  tenn,  to  again  call  the  case  up,  and  grant  such 
motion;  and  we  concede  that,  if  the  court  can  do  this,  it  affords 
a  reason  why  it  might  do  the  other.  \Ve  have  examined  such 
authorities  of  other  States  as  are  accessible,  but  can  find  no,iO 
bearing  upon  this  question.  In  Loohahaugli  v.  Cooper  (Old.), 
48  Pac.  Hep.  99,  in  a  civil  case,  the  judge,  in  rendering  the  de- 
cision, held  that  the  action  of  tlie  court  in  granting  the  motion 
for  new  trial  was  final,  and  no  further  action  co\dd  be  taken  on 
the  same  motion  ;  and  cites  a  number  of  decisions  of  other  States, 
notably  from  California,  which  appear  to  support  the  doctrine. 
lie  also  quotes  from  Thompson  on  Trials  (sec.  2727),  as  fol- 
lows :  "It  has  been  held  that,  after  an  adverse  decision  on  a  mo- 
tion for  new  trial,  the  moving  party  has  no  right  to  file  another 
motion,  for  the  matters  embraced  in  the  motion  have  become 
res  adjudicata."  As  stated  before,  however,  the  nde  in  our 
State  appears  to  be  dift'erent.  See  Sayles'  Hev.  Civ.  Stats., 
art.  1337,  note  2;  Hooker  v.  Williamson,  02  Tex.  524;  Gnihhs 
V.  Blum,  62  Tex.  420.  IJut  we  believe  the  rule  with  rof(MVMice 
to  civil  cases  in  this  regard  cannot  be  applied  to  criminal  eases, 
in  view  of  the  provisions  of  our  statute  above  quoted.  AVhile 
the  disposition  of  this  cnse  on  habeas  corpus  was  no  doubt  ef)r- 
rect,  yet  what  was  said  by  us  in  that  opinion  at  Vi^riance  with 
this  decision  is  overruled.  We  accordingly  hold  that  the  action 
of  the  court  was  erroneou3,  and  the  judgment  is  reversed,  and 
the  cause  remanded. 

Reversed  and  remanded. 

Davidson,  P.  J.,  absent. 


3  (lofondant, 

V  the  former 

as  we  know, 

froTU  a  road- 

'ions,  wn  1  i 

n  u.  .-  ,1 

bceaiiso  that 

)mpetent  for 

cw  trial  at  a 

1(1  grant  such 

lis,  it  affords 

aniined  sncli 

an  find  no.  so 

oper  (Old.), 

ering  the  de- 

g  the  motion 

[  be  taken  on 

other  States, 

the  doctrine. 

727),  as  fol- 

ion  on  a  mo- 

»  file  another 

have  become 

nile  in  our 

Civ.  Stats., 

524;  Gnthhs 

th  rrf(M'(Mice 

minal  cases, 

ted.     Wliile 

o  doubt  cor- 

jriance  witli 

>t  tlie  action 

}versed,  and 


HORHOUSE  V.  STATE 


G23 


IIoRirorsE  V.  State. 

Tex.  Court  of  Crim.  App.— 50  S.  W.  Rep.  361. 

Decided  March  15,  1899. 

New  Trial:  Neivly-discovertd  evidence  as  to  insanity. 

Where  the  evidence  Is  not  conclusive  as  to  criminal  intent,  newly- 
discovered  evidence,  showing  that  the  accused  was  insane,  is 
ground  for  a  new  trial,  even  though  with  reasonable  diligence  it 
might  have  been  discovered  previous  to  the  trial. 

Appeal  from  the  District  Court  of  Galveston  County;  Hon. 
E.  D.  C.^avin,  Judge. 

Appellant  Ilorhouse,  convicted  of  burglary,  appeals.  Ee- 
versed. 

Byron  Johnson  and  Marsene  Johnson,  for  the  appellant. 
liobt.  A.  John,  Asst.  Atty.  Gen.,  for  the  State. 

Brooks,  J.  Appellant  was  convicted  of  burglary,  and  his 
punishment  assessed  at  confinement  in  the  penitentiary  f(n*  a 
term  of  five  years,  and  he  appeals. 

J.  S.  Brown,  the  owner  of  the  alleged  burglarized  house, 
testified:  "Alx>ut  eleven  o'clock  at  night  we  were  awakened  by 
hearing  some  one  in  the  house  downstairs,  myself  and  family 
l>eing  upstairs.  The  doors  had  been  locked,  and  every  opening 
in  it  Avas  closed.  Uptm  hearing  the  noise,  I  went  to  a  window, 
and  called  out  tx)  I^.  S.  Lut1<in,  whom  I  saw  passing,  and  asked 
hini  to  go  to  a  neighbor's  and  telephone  for  the  police,  and  tell 
them  that  there  was  a  burglpv  in  my  house.  Lufkin  also  eaine 
•witli  the  policemen  *^o  my  house;  some  of  them  going  to  the 
back  door,  and  some  to  the  front.  When  they  entered  tlie  house, 
I  came  downstaii"s.  They  arrested  the  defendant  (sitting  there), 
■who,  when  arrested,  was  attemi)ting  to  pass  out  at  the  front 
door,  which  they  liad  o])ened  in  entering,  lie  had  in  his  hands 
a  Japanese  machete,  which  belonged  to  me.  I  had  bought  it  as 
a  curio,  and  my  wife  ke])t  it  (tn  the  parlor  table  as  a  curiosity. 
The  machete  is  a  very  sliarp  knife  or  Japanese  sword,  and,  if  a 
man  be  struck  a  good  blow  with  it  on  the  head,  the  head  and 
the  body  might  be  easily  s])lit  open  to  the  waist  of  the  man 
struck.     ...     I  had  other  personal  property  in  the  house, 


^'j 


624 


AMERICAN  CRIMINAL  REPORTS. 


such  as  honseliold  and  kitchen  fumittive,  silvonvarc,  phitc,  and 
jewelry,  of  the  value  of  more  than  one  thousand  dollars.  De- 
fendant did  not  have  my  consent  to  enter  the  house." 

X.  S.  Lufkin  corroborates  the  testimony  of  Brown,  and  also 
stated  that,  as  he  entered  the  front  door,  defendant,  who  was 
inside  the  house,  attempted  to  pass  out  by  him.  "When  I 
sto])ped  him,  and  asked  him  what  he  was  doing,  he  said  that 
he  was  the  boy  from  the  back  yard."  Defendant  testified  in 
his  own  behalf:  "I  am  called  by  some  people  i'ritz  Galvau 
and  by  some  Fred  Galvau,  but  my  name  is  Fred  IIoi'hoUf=e.  I 
have  no  idea  why  I  went  into  Mr.  Brown's  house,  and  could 
not  tell  you  what  made  me  do  it."  The  above  and  foregoing  is, 
in  substance,  all  the  testimony  introduced. 

On  the  motion  for  new  trial,  ajjpellant,  thi'ough  his  attorneys, 
filed  as  an  exhibit  thereto  a  certified  copy  of  the  judgment  of 
conviction  of  appellant,  Fritz  Galvan,  on  the  20lh  day  of  April, 
1898,  in  the  county  court  of  Harris  county,  of  luiuicy.  They 
also  attach  as  exhibits  the  afiidavits  of  his  sistx'r  and  brother, 
which  state  facts  showing  clearly  that  appellant  was  crazy. 

Jt  is  true,  there  is  no  diligence  shown  by  appellant  to  secure 
the  attendance  of  the  witnesses,  or  to  procure  the  certified  copy 
of  the  decree  of  the  county  court  of  Harris  county ;  but,  if  the 
defense  of  insanity  urg(>d  by  appellant  be  true,  the  question  of 
diligence  is  not  to  be  considered  by  the  court  in  passing  on 
whether  or  not  a  new  trial  should  be  granted.  Judge  Wilson, 
in  Schuessler  v,  Slafe,  19  Tex.  App.  472,  uses  this  language: 
"It  is  tnic  that  no  diligence  has  been  used  by  defendant  to  dis- 
cover and  procure  this  testimony.  On  the  contrary,  his  desire 
was  that  such  testimony  should  not  be  resorted  to. 

"If,  in  fact,  the  defendant  is  insane,  it  could  not  be  expected 
that  he  should  use  diligence  to  procure  the  testimony,  and  the 
law  would  not  exact  it  of  him.  His  counsel  appear  to  have  used 
reasonable  diligence  to  obtain  testimony,  and  did  obtain  some, 
as  to  his  mental  condition,  and  show  good  reason  why  they  did 
not  procure  the  testimony  which  they  show  can  be  produced  on 
another  trial.  This  newly-discovered  evidence  is  certainly  ma- 
terial, and  calculated,  we  think,  to  change  the  result  on  another 
trial.    It  appears  to  us  probable  that  the  defendant  is  not  a  re- 


COOPLR  V.  COMMONWEALTH. 


025 


,  plate,  and 
ollars.     Do- 

:n,  and  also 
it,  who  was 
"When  I 
le  said  that 
testified  in 
ritz  Galvan 
[orhour'e.  I 
,  and  could 
foregoing  is, 

is  attorneys, 

judgment  of 

ay  of  April, 

iiacy.     They 

;ind  brother, 

s  crazy. 

int  to  secure 

fortified  co])y 

;  but,  if  the 

question  of 

passing  on 

ge  Wilson, 

language : 

lant  to  (lis- 

his  desire 

)e  expected 

nv,  and  the 

o  have  used 

)tain  some, 

ly  they  dill 

)rodueed  on 

rtainly  ma- 

on  another 

is  not  a  re- 


sponsible person,  and  wo  think  that  the  law  and  justice  demand 
that  ho  shall  have  a  new  trial." 

We  think  that  the  evidence  in  this  case  clearly  shows  that  ap- 
pellant is  entitled  to  a  new  trial,  since  the  exhibits  attached  to 
appellant's  motion  for  new  trial  show  that  a  different  result 
would  probably  have  been  reached  if  the  evidence  of  the  insanity 
of  appellant  had  been  introduced. 

Furthermore,  the  evidence  of  the  State  is  not  of  that  con- 
clusive character  on  the  question  of  intent  such  as  would  ordi- 
narily be  required.  The  evidence  does  not  show  that  he  had  any 
f(donious  intent.  True,  he  broke  into  the  house  through  a  win- 
dow, but,  after  getting  in,  although  the  owner  of  the  house 
made  o\itcry,  and  had  the  police  telephoned  for,  yet  he  stayed 
there,  and  never  attempted  to  take  anything  away  from  the  house 
or  to  escape,  nor  did  ho  clfer  any  resistance  when  arrested. 
This,  coupled  with  the  exhibits  as  above  indicated,  attached  to 
his  motion  for  new  trial,  constrain  us  to  reverse  the  judgment. 

The  judgment  is  accordingly  reversed,  and  the  cause  re- 
manded. 

Davidson,  P.  J.,  absent. 


Cooper  v.  Commonwealth. 

106  Ky.  909—21  Ky.  Law  Rep.  546,  51  S.  W.  Rep.  789,  45  L.  R.  A.  216. 

Decided  June  17,  1899. 

Pebjuby:  Res  judicata. 

An  acquittal  on  a  trial  for  adultery  bars  a  prosecution  against  the 
defendant  for  perjury,  charging  that  in  testifying  on  the  trial 
he  denied  the  alleged  carnal  intercourse. 
HousoN,  J.,  and  Paynter,  J.,  dissenting. 

Appeal  from  the  Circuit  Court  of  Kowan  County. 
Appellant  Cooper,  being  convicted  of  the  offei.^e  of  perjury, 
appeals.    Reversed. 

A.  T.  Wood  and  R.  Blair,  for  the  appellant 

W.  S.  Taylor,  for  the  appellee. 
VouXI-40 


'wvS: 


1    J 


!  ,i' !' 


W\ 


i-' 


620 


AMERICAN  CRIMINAL  REPORTS. 


DrnNAM,  J.  The  appellant  and  one  Libbie  Purvis  ■were 
jointly  indicted  in  the  llowan  circuit  court  for  the  offense  of 
adultery.  Tlio  trial  under  that  indictment  resulted  in  a  ver- 
dict of  acquittal  for  appellant.  The  gi-and  jury  of  Rowan 
county  thereupon  reported  this  indictment  against  him,  in  which 
it  is  charged  that  upon  the  trial  of  appellant  and  Li])l)ie  Purvis 
upon  the  charge  of  adultery  "he  did  knowingly,  wilfully,  and 
corruptly  swear  that  ho  had  not  had  carnal  sexual  intercourse 
with  Libbie  Pun'is,  when  same  was  false  and  untrue,  and  was 
known  by  him  to  be  false  and  untrue."  The  trial  under  this 
indictment  resulted  in  a  verdict  of  guilty,  and  a  judgment  sen- 
tencing appellant  to  confinement  in  the  penitentiary,  which 
we  iir(>  asked  upon  this  appeal  to  reverse. 

The  principal  question  to  be  considered  is  the  effect  which 
is  to  be  given  to  the  indictment,  trial,  verdict,  and  judgment 
of  acquittal  of  appellant  under  the  indictment  for  adultery,  as 
it  is  manifest  that  appellant  cannot  be  guilty  in  this  case  if  ho 
was  innocent  of  the  charge  contained  in  the  other  indictment. 

His  guilt  or  innocence  of  the  offense  of  having  had  carnal 
sexual  intercourse  with  Libbie  Purvis  was  the  exact  question 
which  was  tried  in  the  first  proceeding,  and  as  a  result  of  that 
trial  the  defendant  was  fcjund  not  guilty.  In  order  to  convict 
him  in  this  case,  it  was  necessan'  for  the  jury  to  believe  that 
he  was  guilty  of  the  i(l(Mitical  ofFeiise  for  which  he  had  been  tried 
and  ae(iuitted  iinder  the  other  indictment,  as  it  is  evident  that, 
if  he  was  innocent  of  having  had  carnal  sexual  intercourse  with 
Libbie  Purvis,  he  was  not  guilty  of  fals(>  swearing  when  he 
stated  that  he  had  not  had  such  intercourse  with  her.  We  there- 
fore have,  as  a  result  of  the  trial  of  a])pellant  under  these  two 
indictments,  a  verdict  and  judgment  finding  him  not  guilty  of 
the  ofTense  of  having  had  carnal  scwual  intercourse  with  Libbie 
Purvis,  and  in  the  second  case  a  verdict  and  judgment  finding 
him  guilty  of  false  swearing  when  he  testified  that  he  had  not 
had  such  intercourse  with  her;  in  other  words,  the  first  jury 
found  him  innocent  of  the  misdemeanor  with  which  he  was 
charge(l,  and  the  second  jury  found  him  guilty  of  a  f'cdony  be- 
cause he  testified  that  he  was  not  g^iilty  of  such  misdemeanor. 
It  certainly  was  never  intended  that  the  enginery  of  the  law 
should  be  used  to  accomplish  such  inconsistent  results.     It  a^)- 


urvis  were 
(  offense  of 
I  in  a  vor- 

of  Rowan 
Ti,  in  whii'li 
:)l)ie  Purvis 
ilfully,  iind 

intcrconrso 
10,  and  was 

under  this 
Igmont  sen- 
ary,  which 


;ffect  which 
d  judsiinent, 
aduhery,  as 
is  case  if  ho 
dictnient. 
had  carnal 
act  question 
psult  of  that 
r  to  convict 
K'lieve  that 
hceu  tried 
ident  that, 
course  witli 
<r  Avhen  ho 
We  tliere- 
thes(^  two 
t  guihy  of 
with  Lihhii' 
(lit  finding 
lie  liiid  iKit 
first  jury 
ich  he  was 
felony  h(>- 
sdciueanor. 
fif  the  law 
!is.     It  ap- 


COOPER  V.  COMMONWEALTH.  (-o-j- 

pears  to  us  from  the  conflicting  character  of  the  test  inn  .iiy  in  tlio 
ease  upon  the  question  of  defendant's  guilt  or  innocence  that  a 
verdict  of  the  jury  might  have  heen  upheld  in  the  first  caso 
wliether  found  one  way  or  the  other,  hut  certainly  the  finding 
of  the  jury  must  he  conclusive  of  the  fact  considered  as  against 
tlie  Commonwealth,  and  preclude  any  further  prosecution  which 
involves  the  ascertainment  of  such  fact. 

A  question  analogous  to  the  one  at  har  was  considered  in  tlio 
case  of  Coffey  v.  Unilcd  Stales,  IIG  U.  S.  43(),  0  Sup.  ("t.  4:57, 
tl'.e  facts  in  which  ease  are  ahout  as  follows:  Coffey  was  a  dis- 
tiller, and  was  proceeded  against  under  a  section  of  the  statute 
for  defrauding,  or  attem])ting  to  defraud,  the  United  States  of 
the  tax  on  spirits  distilled  hy  him,  and  the  coi)])er  stills  and 
other  d:.-?t!!lery  apparatuses  used  by  him  and  the  distilled  spirits 
found  on  his  distillery  premises  were  seized.  One  section  of 
the  statute  provides,  as  a  consequence  of  the  commission  of  the 
prohihited  act,  that  this  certain  property  should  ho  forfeite(l, 
and  that  the  offender  should  he  fined  and  imprisoned.  CofTey 
was  first  proceeded  against  on  the  criminal  charge,  and  ac- 
quitted. SuhseqiUMitly  a  ])roceeding  to  enforce  the  forfeiture 
against  the  res  was  instituted.  The  defendant  in  the  proceed- 
ing //;  rein  relied  u]K)n  his  acquittal  under  the  criminal  charge, 
and  .ludge  lilatchford,  in  delivering  the  opinion  of  the  court, 
said : 

''Wliere  an  issue  raised  as  to  the  existence  of  the  act  or  fact 
denounced  has  been  tried  in  a  criminal  proceeding  institute(l 
by  the  United  States,  and  a  judgment  of  acquittal  has  heen  ren- 
dered in  favor  of  a  jiarticiilar  ]>er<on,  that  judgment  is  conclu- 
si\('  in  favor  of  such  person  on  the  subseiiuent  trial  of  a  suit 
in  rem  by  the  United  States,  where,  as  against  him,  the  exist- 
rnce  of  the  same  act  or  fact  is  ihe  matter  in  issue,  as  a  cause  for 
the  forfeitinv  of  the  property  proseci,te(l  in  such  suit  in  rem. 
Tt  is  \irged  as  a  reason  for  not  allowing  such  etVect  to  the  judg- 
ment that  the  acquittal  in  the  criminal  case  may  have  taken 
])lace  because  of  the  ruh>  requiring  guilt  to  he  proved  beyond  a 
reasonable  do\ibt,  and  that  ('U  the  same  evidence,  on  the  (]ues- 
tioii  of  preponderance  of  proof,  there  might  Ihi  a  verdict  for  the 


Unite<l  States  in  the  swit  in  re 


III. 


Nevertheless,  the  fact  or  act 


has   1 


jeen 


put 


m    issue. 


am 


1   determined  against  the  United 


'' 

1  1 
t  1 

■ 

i,. 

'  1'; 

■ 

1  1 

f 

i 

n 


i\' 


G28 


AMERICAN  CRIMINAL  REPORTS. 


States;  and  all  that  is  imposed  by  the  statute  as  a  consequonco 
of  giiilt  is  a  piuiisliiiumt  therefor.  There  could  be  no  new  trial 
of  the  criminal  prosecution  after  the  acquittal  in  it." 

And  the  conclusion  readied  in  that  case  is  in  consonance  Avith 
principles  laid  down  by  the  United  States  Supreme  Court  in  the 
case  of  Gchton  v.  lloyt,  [)  Wheat.  240.  In  the  case  of  Itcx  r. 
Duchess  of  Kiiirjslon,  20  How.  St.  Tr.  355  and  5;>8,  the  court 
held : 

''The  jtuljijment  of  a  court  of  concurrent  jurisdiction,  directly 
upon  the  point,  is,  as  a  plea,  a  bar,  or,  as  evidence,  conclusive, 
between  the  same  parties,  upon  the  same  matter,  directly  in 
question  in  another  court." 

And  in  the  case  of  United  Slates  v.  McKee,  4  Dill.  128  [Fed. 
Cas.  Xo.  15,(588],  the  defendant  had  been  convicted  and  pun- 
ished under  a  section  of  the  llevised  Statutes  for  conspiring 
with  certain  distillers  to  defraud  the  United  States  by  unlaw- 
fully removing  distilled  spirits  without  the  ])ayment  of  taxes 
ther(H)n.  ]Ie  was  afterwards  sued  in  a  civil  action  by  the  United 
States,  under  another  section,  to  recover  a  penalty  of  double  tho 
amount  of  the  taxes  lost  by  the  conspiracy  and  fraud.  The  court 
held  that  the  two  alleged  transactions  were  but  one,  and  that  tho 
suit  for  the  penalty  was  barred  by  the  judgment  in  tho  criminal 
case.  The  decision  was  ])ut  on  the  ground  that  tho  defendant 
could  not  be  twice  punished  for  the  same  crime,  and  that  tho 
former  conviction  and  judgment  were  a  bar  to  the  suit  for  tho 
penalty. 

And  Judge  Van  Fleet,  in  his  Treatise  on  the  Law  of  Former 
Adjudication  (p.  1242,  §  028),  says: 

"If  there  is  a  contest  between  ihe  State  and  tho  defendant 
in  a  criminal  case  over  an  issue,  I  know  of  no  reason  why  it  is 
not  res  adjudlcata  in  another  criminal  case;"  citing  a  number 
of  American  decisions  in  sup])ort  of  the  text. 

Appellant  in  this  case  had  already  been  tried  and  acquitted 
of  th(!  offense  of  having  had  carnal  sexual  intercourse  with  Lil)- 
bie  Purvis,  and  the  judgment  in  that  case  is  res  judicala  against 
the  Commonwealth,  and  he  cannot  again  be  put  on  trial  where 
the  truth  or  falsity  of  the  charge  in  that  indictment  is  the  gist 
of  the  question  under  investigation.  It  therefore  f(dlow3  that 
appellant  was  entitled  to  a  peremptory  instruction  to  the  jury 


conscqucnco 
no  new  trial 

ontinee  ■with 
Court  in  the 
io  of  liC.v  r. 
8,  the  court 

Ion,  directly 

,  conclusive, 

directly  in 

1.  12S  [Fed. 

id  and  pun- 

'  consi)iring 

s  by  uiilaw- 

?nt  of  taxes 

f  the  United 

f  double  the 

I.   The  court 

and  that  the 

ho  criminal 

e  defendant 

nd  that  the 

suit  for  tlio 

f  of  Former 

:>  defendant 
)n  why  it  is 
^  a  number 

d  acquitted 
e  with  Lil)- 
vala  against 
trial  where 
t  is  the  gist 
■()llow3  that 
to  the  jury 


COOPER  r.  COMMONWEALTH. 


629 


to  find  him  not  guilty.  For  reasons  indicated,  the  jiidgmont  is 
reversed,  and  the  cause  remanded  for  proceedings  consistent 
Avith  this  opinion. 

IT(.usoN,  T.  (dissenting).  Appellant,  when  indicted  for  adul- 
tery with  ].il)bie  Purvis,  secured  an  acquittal  by  swearing 
falsely  that  he  had  not  had  carnal  intercourse  with  her;  and 
being  indicted  and  convicted  of  false  swearing  in  giving  this 
testimony,  it  is  held  that  because  he  was  acquitted  in  that  case 
ho  cannot  bo  punished  for  the  crime  tlnis  connnitted.  In  other 
words,  it  is  held  that  if  the  defendant  in  a  criminal  case  will 
awear  to  enough  to  secure  an  acquittal,  and  does  in  this  nninner 
get  a  verdict  in  his  favor  in  that  case,  he  cannot,  although 
clearly  gniilty,  be  punished  for  the  perjury  or  false  swearing  by 
means  of  which  he  defeated  justice.  Such  a  nde  puts  persons 
charged  with  crime,  when  testifying  for  themselves,  on  a  differ- 
ent platie  from  other  witnesses  and  oflfei's  an  incentive  not  only 
to  perjury  on  their  ])art,  but  to  the  corruption  of  justice  in  other 
ways  to  secure  a  verdict  in  their  favor  which  will  ])rotect  them 
from  punishment  for  both  the  offense  for  which  they  are  tried 
and  the  perjury  committed  on  the  trial.  It  is  certainly  ancnia- 
lous  to  say  that  if  a  criminal  attempts  by  perjury  to  secnre  an 
ac(piittal  and  fails  in  the  attempt,  he  may  be  punished  for  tho 
crime;  but  that  if  he  is  successful,  no  ])uiiishment  can  be  in- 
flicted. Undoubtedly  it  would  seem  that  there  is,  at  most,  as 
sound  reason  for  punishing  this  grave  crime  where  the  ends  of 
justice  have  been  thereby  def(>a^'d  as  where  th(^  effort  to  defeat 
justice  has  proved  abortive. 

In  Freeman  on  Ju<lgments,  sec.  318,  it  is  saitl:  "The  ]nMn- 
ciples  a])plicable  to  judgments  in  criminal  cases  are,  in  general, 
identical,  so  far  as  the  question  of  estoppel  is  involved,  with  tho 
principles  recognized  in  civil  cases.  An  acquittal  or  a  convic- 
tion, under  an  indictment  for  any  offense,  is  a  bar  to  any  subse- 
quent indictment  substantially  like  the  former.  Ihit  in  criminal 
as  in  civil  actions,  it  is  essential  that  tho  judgment  be  on  tho 
iiierits,  and  not  tainted  with  fraud.  Thus  going  into  a  favorable 
court,  and  submitting  to  a  conviction,  in  order  to  escape  a  severe 
penalty,  is  no  bar  to  a  hotm  f!(h'  ])rosecution." 

The  rule  as  to  collateral  attack  on  judgments  in  civil  cases 


'•:' 


(. 


Illti' 


m 


680 


AMERICAN  CRIMINAL  REPORTS. 


for  fraud  is  thus  stated  in  12  Am.  &  Eng.  Ency.  of  Law,  147- 
148 :  "Jt  is  n  gcnoral  rule  at  comuion  law  that  parties  and  privies 
to  a  judgment  may  not  impeach  it  collaterally  for  fraud,  though 
it  seems  they  may  prove  that  the  judgment  is  being  fraudulently 
used  for  a  different  purjKjse  than  that  intended,  or  that  it  is 
based  upon  a  paper  fraudulently  obtained.  This  rule  has, 
however,  been  lield  inapplicable  where  no  appeal  lies  from  tho 
judgment." 

When  there  is  no  appeal,  and  no  other  way  to  set  aside  a  judg- 
ment obtained  by  fratid,  to  hold  it  conclusive  when  offered  in 
bar  of  another  action  is  to  allow  the  wrong-doer  to  profit  by  his 
own  wrong.  Thus,  in  Ncuroinh's  I'J.v'r  v.  Neivcomb,  13  Jiush, 
.544,  20  Am.  Kep.  222,  the  defendant  could  not  appeal  fmm 
the  judgment,  move  for  a  new  trial  or  file  a  ])etition  to  set  aside, 
and  this  court,  sustaining  her  right  to  treat  the  judgment  as 
void  when  offered  in  another  suit  in  bar  of  her  action,  sai<l : 

"Kecogtiizing  the  general  doctrine  that  judgments  of  courts 
of  g<>neral  jurisdiction  are  not  the  subject  of  an  attack  in  a  col- 
lateral proceeding,  it  becomes  necessary  to  determine  whether 
this  rule,  or  the  reasons  upon  which  it  is  basc^  is  to  be  apidicd 
to  the  case  before  us. 

"The  rule  had  its  origin  from  motives  of  public  policy,  sus- 
tained, as  all  the  authorities  conduce  to  show,  by  the  additioiuil 
reason  that  the  party  aggrieved  has  every  0]>porfunity  ofVen'd 
him  for  redress  if  wrong  has  been  committed ;  he  may  appeal, 
move  to  set  asi<lo  the  judgment  or  for  a  new  trial,  so  long  as  ilio 
court  rendering  the  judgment  has  any  control  over  it.  lie  may 
also  file  his  petition  to  review  the  judgment,  or  a  petition  for  a 
new  trial.  Such  proceedings  the  policy  of  the  law  requires  ho 
shall  atlopt,  and  will  not  permit  collateral  attacks  upon  such 
judgments  when  they  may  be  offered  as  evidence,  or  relied  on 
as  the  final  determination  of  the  rights  of  the  parties." 

On  the  same  princijde,  foreign  judgments  may  be  avoided  for 
fraud  in  their  ol)tention,  for  the  reason  that  there  is  no  other 
way  to  correct  the  matter,  and  that  the  ends  of  justice  recpiire 
this.    Freeman  on  Judgments,  sec.  591. 

Tn  a  criminal  case  the  State  cannot  obtain  a  new  trial  for 
newly-discovered  testimony  after  the  term,  and  if  the  judgment 
bars  a  prosecution  of  the  defendant  for  his  wilful  perjury. 


•1    ii 


Law,  147- 
niitl  })rivio9 
nul,  though 
rau(hih'iifly 
r  that  it  is 
s  rnlo  lias, 
33  from  tho 

sido  n  jiitlg- 
i  oilVrod  in 
)rofit  by  liis 
b,  13  \\\\A\, 
ppoal  from 
Ut  spt  asitle, 
idirrnoiit  i\A 
1,  said : 
ts  of  courts 
ck  in  a  ('<d- 
110  whothor 
I  bo  ai)i)li(Hl 

policy,  ?UM- 

additifuiiil 

lity  olVci'cd 

lay  aj)pca1, 

long  as  tlio 

.    ITo  may 

ition  for  a 

oqniros  lio 

njion  such 

r  rolied  on 

voided  for 
9  no  other 
ICG  requiro 

V  trial  for 

judgmont 

1  perjury, 


COOPER  f.  COMMONWEALTH. 


C31 


^\•herol)y  lin  obtains  it,  there  is  no  remedy.  Tho  ends  of  justice 
have  not  only  been  defeated,  but  the  foumlation  of  ju<licial  pro- 
ceedings have  been  sapped. 

The  rule,  stated  by  Mr.  Freeman  above,  that  a  judgment  ren- 
dered in  an  inferior  court  to  which  the  defendant  voluntarily 
goes  to  escape  a  aovero  penalty  is  n<it  a  bar  to  a  subse(pient  pros- 
ecutio:i  for  tho  same  offense,  rests  on  the  ground  that  he  thus 
perpetrates  a  fraud  on  tho  State,  and  has  been  followed  by  this 
court  in  Carrltxjlon  v.  CommonweaUh,  78  Ky.  8.'}.  The  fraud 
in  this  class  of  cases  is  in  giving  the  court  jurisdiction;  but  cer- 
tainly fraud  of  this  sort  is  less  tolerated  in  the  eye  of  the  law 
than  tho  abhorred  crime  of  perjury,  cheating  the  court  out  of 
tho  truth,  after  its  jurisdiction  has  lawfully  attached. 

Tn  Slate  v.  Sirciison,  7J)  N.  C.  (1152,  the  defendant  had,  by  im- 
])ositi<m  on  the  court,  had  a  jury  impaneled  and  a  formal  ver- 
dict of  not  guilty  entered,  on  llio  ground  that  tlu;  matter  had 
been  compromised  with  the  State.  This  was  hold  no  bar  to  an- 
other trial  under  the  same  or  another  indi(!tnient.  The  court 
said:  "Tho  State  (tught  to  have  some  remedy,  CJuilt  cannot  bo 
allowed  to  jirotoct  itself  by  fraud  and  ct)rruption,  or  else  tho  tri- 
bunals of  justice  become  dens  of  thieves,  and  law  as  adminis- 
tered in  them  is  a  macliiuo  to  ])unish  tho  weak  and  screen  tho 
powerful.  .  .  .  There  is  a  remedy  not  without  precedent  or 
authority  for  its  use,  plain,  and  not  of  infrequent  use,  lai<l  down 
in  tho  elementary  works  on  law,  and  supjiorted  by  the  adjudica- 
tions of  respectable  courts.  This  remedy  is  in  tho  court  in  which 
the  trial  was  had,  and  is  independent  of  any  action  of  this  court. 
It  is  assorted  in  many  text  books  and  dicta  of  judges  and  sup- 
jxirted  by  some  decisions,  that  a  verdict  of  accpiittal  on  an  in- 
dictment for  a  misdemeanor  procured  by  the  trick  or  fraud  of 
the  defendant  is  a  nullity,  and  may  be  treated  as  such;  and  tho 
person  acquitted  by  such  means  may  bo  tried  again  for  the 
olfeiiso  of  which  ho  was  ac(piitted.  3  Greenl.  Ev.,  sec.  38; 
1  Whart.  Crim.  Law,  sec.  540;  3  id.,  sees.  3221-3222;  1  Chitty, 
Criin.  Law,  057." 

]f  the  defendant,  where  his  constitutional  right  not  to  bo  put 
in  jeopardy  a  second  time  for  the  same  offense  is  not  involved, 
may  be  estop])od,  by  reason  of  his  ow^n  fraud  in  procuring  tho 
judgment,  from  relying  on  the  plea  of  res  ad  judicata,  how  much 


w 

'  1  ■' 

i: 
1  i 

'.'?;■  ■■■  > 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0     ^^  ti& 

■tt  ^   12.2 


1.1 


Itt 


I^iotographic 

Sdaioes 

CaqxsHtiQn 


23  VraST  MAM  STIHT 

WIISTIR,N.Y.  145M 

(716)172-4503 


4^ 


;V 


632 


AMERICAN  CRIMINAL  REPORTa 


the  more  should  he  be  estopped  to  make  this  plea  to  escape  pun- 
ishment for  the  crime  of  perjury'  by  means  of  which  he  obtained 
the  judgment.  There  is  not  a  shadow  of  doubt  of  appellant's 
guilt  in  the  case  1  :^fore  us,  and  not  to  punish  him  is  to  lose  sight 
of  the  principles  on  which  the  nile  relied  on  rests. 

The  opinion  is  based  on  the  ground  that  the  cpiestion  whether 
appellant  had  had  sexual  intercourse  with  Libbic  Pun^is  was 
litigated  and  determined  on  the  trial  of  the  indictment  against 
him  for  adultery,  and  that  the  State  is  concluded  by  the  judg- 
ment in  that  ease  from  litigating  with  him  again  this  precise 
question  on  a  charge  of  false  swearing  on  that  trial.  Xono  of 
the  authorities  cited  by  the  court  sustain  this  conclusion ;  nor  is 
it  sustained  by  the  principles  on  which  the  doctrine  of  res  adju- 
dicaia  rests.  It  rests  after  all  on  public  policy  and  convenience. 
Its  design  is  to  protect  courts  of  justice  and  secure  for  them  re- 
spect. It  is  court-made  law  and,  like  other  conuijon-law  prin- 
ciples, is  not  to  be  stretched  beyond  its  rea.son.  The  purpose  of 
the  rule  is  to  promote  the  orderly  administration  of  justice,  not 
defeat  it.  It  rests  on  the  ground  that  the  law  having  provided 
certain  processes  for  the  correction  of  errors  or  defects  in  judg- 
ments, the  ends  of  justice  require  that  these  r.hould  be  followed. 
But  it  was  never  intended  to  assail  the  right  of  the  courts  to 
protect  the  administration  of  justice  from  perjury,  a  right 
which  all  courts  must  of  necessity  possess  if  judicial  proceed- 
ings are  not  to  become  a  solenm  farce.  Neither  the  reason,  pur- 
pose nor  spirit  of  the  rule  permits  its  application  in  such  a  man- 
ner as  to  destroy  respect  for  courts  of  justice  or  make  them  im- 
potent to  punish  crime. 

For  these  reasons  I  dissent  from  the  conclusion  reached  by 
the  majority  of  the  court. 

This  dissent  which  was  announced  at  the  time  was,  by  an 
oversight,  not  filed  before. 

Payntku,  J.,  concurring  in  the  dissenting  opinion. 

Notes  (by  J.  F.  O.). — Of  the  four  volumes  credited,  In  the  head 
lines,  with  reporting  this  case,  only  the  106  Kentucky  gives  the  dis- 
senting opinion;  the  other  three  give  the  reversing  opinion,  and  sim- 
ply note  that  "Hobson,  J."  dissents,  making  no  mention  of  Mr.  Justice 
Paynter's  dissent.    The  court  was  constituted  of  seven  judges. 

The  writer  of  the  dissenting  opinion  concedes  that  fraud  which 
vitiates  a  Judgment  in  a  criminal  case  is  fraud  "in  giving  the  court 


EX  PARTE  CLEM  McCARVER. 


633 


escape  piin- 

lie  obtained 

;  appellant's 

to  lose  sight 

ion  whether 
Purvis  was 
(lent  against 
)y  the  judg- 
this  precise 
1.  Xone  of 
ision ;  nor  is 
of  res  adju- 
3onvenience. 
for  thein  re- 
on-law  prin- 
3  purpose  of 
justice,  not 
ng  provided 
^cts  in  judg- 
ho  followed, 
ho  courts  to 
iry,  a  right 
lial  proceod- 
reason,  pur- 
such  a  nian- 
ko  them  iui- 

roached  by 

was,  by  an 

tn. 

In  the  head 
gives  the  dls- 
ion,  and  sim- 
)f  Mr.  Justice 
idges. 

fraud  which 
ing  the  court 


jurisdiction,"  but  contends  that  greater  is  the  fraud  when  perpetrated 
by  perjury  after  jurisdiction  has  attached.  Morally  he  may  be  cor- 
rect; but  if  such  fraud  can  vitiate  a  judgment  where  jurisdiction  has 
attached,  then  a  judgment  based  upon  a  verdict  of  not  guilty  could 
be  set  aside,  and  the  original  case  be  retried,  notwithstanding  the  con- 
stitutional provision,  regulating  the  practice  in  many  of  the  States, 
that  no  person  can  be  placed  twice  in  jeopardy  of  the  same  offense. 

It  is  well  settled  that  if  a  person  appears  before  a  justice  of  the 
peace  and  accuses  himself  with  being  guilty  of  a  misdemeanor,  and 
is  fined,  the  judgment  is  no  bar  to  a  future  prosecution  for  the  same 
offense  (Drake  v.  State,  68  Ala.  510;  Bingham  v.  State,  59  Miss.  529), 
for,  the  State  not  being  represented,  the  proceeding  is  ex  parte,  and 
there  is  no  jurisdiction.  The  same  rule  applies  where  a  guilty  person 
fraudulently  procures  another  person  to  file  a  complaint  against  him, 
there  simply  being  an  appearance  of  jurisdiction,  but  in  fact  no  juris- 
diction. 


Ex  Parte  Clem  McCakver. 

39  Tex.  Crim.  Rep.  448,  42  L.  R.  A.  447,  46  S.  W.  Rep.  936. 

Decided  June  15,  1898. 

Personal  Liberty:  Curfew  Ordinance:  Rule  for  construing  ordinances. 

1.  Coifrts  are  not  inclined  to  question  the  reasonableness  of  munici- 

pal ordinances  passed  under  a  special  grant  of  power;  but  if  an 
ordinance  based  upon  a  general  power  does  not  appear  to  be  rea- 
sonable, it  will  be  declared  to  be  void. 

2.  A  municipal  ordinance,  depending  for  its  authority  on  a  general 

power  requiring  the  ringing  of  a  curfew  bell  at  forty-five  minutes 
after  eight  o'clock  p.  m.,  and  declaring  it  unlawful  for  any  per- 
son under  the  age  of  twenty-one  years,  not  in  the  company  of 
parent  or  guardian,  and  not  in  search  of  a  physician,  to  be  on  the 
streets  or  alleys  at  fifteen  minutes  after  such  ringing,  being  an 
unreasonable  interference  with  personal  liberty,  is  void. 

Appeal  from  the  County  Court  of  Young  County ;  Hon.  0.  E. 
Finlay,  Judge. 

In  a  habeas  corpus  proceeding,  the  relator  being  remanded, 
appeals.    Relator  discharged. 

John  C.  Kay  and  P.  A.  Martin,  for  the  relator,  contended 
that  the  ordinance  is  in  violation  of  the  State  constitution ;  cit- 
ing Const.,  art.  1,  sec.  10,  and  Huntsman  v.  State,  12  Tex, 
Crim.  App.  619.    That  the  common  law  gives  no  such  power  to 


i!Si''  ■.; 


634 


AMERICAN  CRIMINAL  REPORTS. 


cities.  That  the  ordinance  endeavors  to  make  acts  criminal 
which  in  themselves  are  not  so ;  and  would  interfere  with  minors 
in  attending  religious  meetings  or  innocent  amusements.  That 
the  city,  being  organized  under  the  Revised  Statutes,  has  no 
pov.-cr  not  expressly  granted,  etc.  Also  cites  Ex  parte  Garza, 
28  Tex.  Crim.  App.  381;  Galveston  v.  Loomy,  54  Tex.  523; 
Miller  v.  Biirch,  32  Tex.  210 ;  V/illiams  v.  Davidson,  43  Tex. 
33 ;  Voshurg  v.  McCrary,  77  Tex.  572 ;  Brenham  v.  Water  Co., 
67  Tex.  542. 

W.  W.  }Valling  and  Mann  Trice,  Asst.  Atty.  Gen.,  for  re- 
spondent. 

IIexdersox,  J.  This  is  an  appeal  from  a  proceeding  under 
a  writ  of  habeas  corpus.  It  appears  in  the  city  of  Graham, 
Young  county,  the  city  council  have  passed  what  is  termed  a 
"curfew  ordinance,"  as  follows: 

"Ordinance  !N'o.  30. 

"An  ordinance  prohibiting  persons  under  the  age  of  twenty-ono 
years  from  remaining  or  being  fo\ind  upon  the  streets  of 
Graliam  after  nine  o'clock  at  night. 

"Be  it  ordained  by  the  city  council  of  the  city  of  Graham,  in 
session  assembled,  that : 

"Section  1.  Any  person  under  the  age  of  twenty-one  years 
who  shall  be  found  upon  any  of  the  streets  or  alleys  of  the  city 
of  Graham  at  night,  and  later  than  fifteen  minutes  after  tho 
ringing  of  the  curfew  bell  as  hereinafter  provided,  sliall  be 
guilty  of  a  misdemeanor,  and  iipon  conviction  thereof  shall  be 
fined  in  any  sum  not  less  than  five  dollars  nor  more  than  fifty 
dollars. 

"Sec.  2.  Be  it  further  ordained,  that  the  foregoing  section 
shall  not  apply  to  any  person  lander  the  age  of  twenty-one  years, 
who  shall  at  the  time  of  being  so  found  upon  the  streets  or  alleys 
of  said  city  be  accompanied  by  his  or  her  parent  or  guardian,  or 
to  any  person  or  persons  in  search  of  the  service  of  a  physician, 
provided  such  person  or  persons  at  the  time  of  being  so  found  is 
actually  executing  such  errand. 

"Sec.  3.  Be  it  further  ordained  by  the  city  council  of  the  city 
of  Graham,  that  the  city  marshal  of  the  city  of  Graham,  at  and 


EX  PARTE  CLEM  McCARVER. 


635 


ts  criminal 
vith  minors 
ents.  That 
tes,  has  no 
arte  Garza, 
Tex.  523; 
m,  43  Tex. 
Water  Co., 

en.,  for  re- 


ding under 
if  Graham, 
is  termed  a 


twenty-ono 
e  streets  of 

Graham,  in 

y-one  years 
I  of  the  citv 
?s  after  tho 
d,  aliall  bo 
fof  shall  he 
e  than  fifty 

»ing  section 
V-one  years, 
ets  or  alleys 
guardian,  or 
I  physician, 
so  found  is 

I  of  the  city 
lam,  at  and 


on  each  and  every  day  at  eight  forty-five  o'clock  p.  m.  shall  ring 
or  cause  to  be  rung  the  church  bell  at  the  Baptist  church  in 
said  city,  and  said  bell  shall  be  known  as  the  'curfew  bell.' 

*'Sec.  4.  Be  it  further  ordained,  that  this  ordinance  shall  take 
effect  and  be  in  force  from  and  after  its  publication,  according 
to  law. 

"Approved  Feb.  28,  1898. 

"J.  S.  Starrett,  ^Mayor." 

That  after  said  ordinance  went  into  effect  the  relator,  a  young 
man  nineteen  years  of  age,  was  found  by  the  city  marshal  of  the 
city  of  Graham  on  the  street  more  than  fifteen  minutes  after  tho 
city  marshal  had  rung  the  curfew  boll  at  the  Baptist  church,  in 
said  city,  on  the  night  of  the  18th  of  April,  1898.  That  said 
niarshal  held  and  detained  him  for  a  violation  of  said  ordinance. 
He  sued  out  a  writ  of  habeas  corpus,  and,  upon  an  examination 
of  the  case,  he  was  remanded  by  the  county  judge,  and  he  now 
prosecutes  this  appeal. 

The  question  here  presented  is  as  to  the  legality  of  said  ordi- 
nance. If  it  be  such  a  one  as  the  city  council  had  a  right  to 
pass,  then  the  relator  is  entitled  to  no  relief;  otherwise  he  is.  It 
appears  that  a  distinction  is  made  between  ordinances  passed 
under  an  express  grant  of  power  by  the  legislature  and  ordi- 
nances which  are  merely  passed  under  a  general  power.  As  to 
the  former,  courts  are  not  inclined  to  inquire  into  their  reason- 
ability;  but  as  to  the  latter,  if  an  ordinance  does  not  appear  to 
be  reasonable,  the  courts  will  declare  them  void.  See  17  Am.  & 
Eng.  Enc.  of  Law,  p.  247,  and  authorities  there  cited ;  Cooley, 
Const.  Lim.  (4th  ed.),  i)p.  243,  244,  and  note. 

It  is  not  shown  in  the  statement  of  facts  how  the  city  Gra- 
ham is  incorporated,  but  we  take  it  for  granted  that  it  is  incor- 
porated under  the  general  act  of  the  legislature  on  the  subject, 
and  it  only  has  such  authority  as  is  conferred  on  it  by  the  pro- 
visions of  such  general  act.  Article  419,  Eevised  Civil  Stat- 
utes, 1895,  gives  the  municipal  authorities  exclusive  control 
and  power  over  the  streets,  alleys,  and  public  grounds  and  high- 
ways of  the  city,  and  to  abate  and  remove  encroachinciits  or  ol)- 
structions  thereon.  A  number  of  articles  also  confer  authority 
on  the  city  council  to  do  certain  things.  But  we  fail  to  find 
any  authority  expressly  authorizing  the  city  council  to  pass  a 


m 


'\. 


636 


AMERICAN  CRIMINAL  REPORTS. 


V   1    « 


"curfew  ordinance,"  as  it  is  termed,  or  an  ordinance  making  it 
a  misdemeanor  for  a  person  under  twenty-one  years  of  age  to 
be  found  on  the  streets  or  public  highways  of  any  city  or  town 
after  nine  o'cloc^i  at  night.  So  that  the  authority  to  pass  this 
ordinance  miist  be  under  the  general  powers  of  the  city  to  pre- 
serve the  peace,  and  to  protect  the  good  order  and  morals  of  the 
city.  Article  457  would  seem  to  proscril)e  the  authority  of  the 
council  in  this  respect.  It  is  as  follows:  "The  city  council  shall 
by  ordinance  have  authority  to  prevent  all  trespasses;  breaches 
of  the  peace  and  good  order;  assaults  and  batteries,  fighting  and 
quarreling;  using  abusive,  obscene,  profane,  and  insulting  lan- 
guage ;  misdemeanors,  and  all  disorderly  conduct,  and  punish  all 
persons  thus  offending."  If  this  is  the  express  authority  on  the 
subject,  it  would  appear  to  exclude  the  authority  of  the  council 
to  go  beyond  it.  But  wo  will  treat  the  question  in  the  proposi- 
tion as  to  whether  or  not,  conceding  that  the  municipality  has 
authority  under  its  general  powers  to  pass  any  ordinance  that 
is  reasonable  to  preserve  the  public  peace  and  to  protect  the  good 
order  and  morals  of  the  community,  the  ordinance  in  question  is 
reasonable.  We  hold  that  it  is  not ;  that  it  is  paternalistic,  and 
is  an  invasion  of  the  personal  liberty  of  the  citizen.  It  may  bo 
that  there  are  some  bad  boys  in  our  cities  and  towns  whose  par- 
ents do  not  properly  o  ntrol  them  at  home,  and  who  prowl  about 
the  streets  and  alleys  duiing  the  night  time  and  commit  offenses. 
Of  course,  whenever  they  do,  they  are  amenable  to  the  law.  But 
does  it  therefore  follow  that  it  is  a  legitimate  function  of  gov- 
ernment to  restrain  them  and  keep  them  off  the  streets  when 
they  are  committing  no  offense,  and  when  they  may  be  on  not 
only  legitimate  errands,  but  engaged  in  some  necessary  business. 
At  common  law  a  conspiracy  was  an  indictable  offense,  and 
under  our  statute  a  conspiracy  to  do  certain  things  is  an  offense. 
If  persons  go  upon  the  street,  whether  under  or  over  age,  in  pur- 
suance of  a  conspiracy  to  commit  burglary  or  some  other  offense, 
they  are  indictable.  But  it  is  not  claimed  here  that  the  going 
upon  the  streets  by  appellant  was  in  pursuance  of  any  conspiracy 
to  commit  any  offense.  We  understand  it  to  be  made  unlawful 
for  any  person  under  twenty-one  years  of  age  to  go  upon  the 
streets  after  nine  o'clock  at  night,  or,  more  strictly  speaking, 
later  than  fifteen  minutes  after  the  ringing  of  what  is  called 


TAYLOR  V.  REESE -PERRY  v.  REESE. 


637 


ee  making  it 
ITS  of  age  to 
city  or  town 
to  pass  this 
i  city  to  pro- 
norals  of  tlie 
liority  of  tlm 
council  shall 
ics;  breaches 
fighting  and 
nsnlting  lan- 
id  punish  all 
lority  on  the 
f  tlie  council 
the  proposi- 
icipality  has 
di nance  that 
tcct  the  good 
n  question  is 
Tialistic,  and 
,  It  may  ho 
8  whose  par- 
prowl  about 
,mit  offenses, 
he  law.  But 
ction  of  gov- 
streets  when 
ly  be  on  not 
ary  business, 
offense,  and 
is  an  offense. 
•  age,  in  pur- 
)ther  offense, 
lat  the  going 
y  conspiracy 
ide  unlawful 
go  upon  the 
ly  speaking, 
hat  is  called 


the  "curfew  bell"  provided  for  by  the  ordinance.    True,  some 
exceptions  are  made.    For  instance,  a  person  under  twenty-one 
years  of  age  may  go  upon  the  streets  with  his  parent  or  guard- 
ian, and  such  person  can  go  upon  the  streets  iu  search  of  tiie 
services  of  a  physician,  but  these  are  the  only  exceptions.    "We 
can  well  imagine  a  niuiiber  of  other  exceptions.     Indeed,  so 
numerous  do  they  occur  to  us  that  they  serve  themselves  to  bring 
into  question  the  reasonability  of  the  law.    A  minor  may  bo  un- 
avoidal)ly  detained  away  from  home  after  night,  yet  in  passing 
along  the  streets  on  his  way  to  his  home  he  commits  an  olfense. 
lie  may  be  at  church  or  at  some  social  gathering  in  the  town, 
and  yet  when  the  curfew  bell  tolls  in  the  midst  of  the  sermon  or 
exhortation,  he  wcnild  be  compelled  to  leave  and  hie  himself  to 
liis  home,  or,  if  at  a  social  gathering,  he  must  make  his  exit  in 
haste.    He  could  not  be  sent  by  his  parents  to  a  drug  store,  or, 
for  that  matter,  on  any  errand,  save  and  except  for  a  physician. 
The  rule  laid  down  here  is  as  rigid  as  under  military  law,  and 
makes  the  tolling  of  the  curfew  bell  equivalent  to  the  drum  taps 
of  the  camp.    In  our  opinion,  it  is  an  undue  invasion  of  the  per- 
sonal liberty  of  the  citizen,  as  the  boy  or  girl  (for  it  equally  ap- 
plies to  both)  have  the  same  rights  of  ingress  and  egress  that 
citizens  of  mature  years  enjoy.     We  regard  this  character  of 
legislation  as  an  attempt  to  usurp  the  parental  functions,  and  as 
unreasonable,  and  we  therefore  hold  the  ordinance  in  question 
as  illegal  and  void.    See  City  of  St.  Louis  v.  Fitz,  53  Mo.  582 ; 
City  of  Chicago  v.  Trotter  (111.  Sup.),  20  X.  E.  Rep.  359.    The 
relator  is  ordered  discharged. 
Relator  ordered  discharged. 


Taylor  v.  Reese,  Judge. 
Perry  v.  Reese,  Judge. 

108  Ga.  379—33  S.  E.  Rep.  917. 

Decided  March  17,  1899. 

Practice:   Bill  op  Exceptions:   Ma"'  he  presented  and  signed  hefore 

motion  for  new  trial — Mandamus. 
1.  If,  upon  the  trial  of  a  criminal  case  in  a  court  whose  judgments 
are  directly  reviewable  by  the  Supreme  Court,  an  error  of  law  be 
committed,  the  necessary  effect  of  which  is  to  control  the  verdict, 


fl' 


iWH'i 


'    ft 


638 


AMERICAN  CRIMINAL  REPORTS. 


;JI   !^  ^    >■ 


and  thus  deprive  the  accused  of  a  fair  and  lawful  trial,  he  may, 
without  moving  for  a  new  trial,  sue  out  a  bill  of  exceptions,  for 
the  purpose  of  having  such  error  corrected. 
2.  When  the  refusal  of  a  judge  to  certify  a  bill  of  exceptions  tendered 
to  him  in  a  criminal  case,  in  which  no  motion  for  a  new  trial  had 
been  made,  is  based  solely  upon  the  ground  that,  in  his  opinion, 
he  had,  in  the  absence  of  such  a  motion,  no  authority  to  certify 
the  bill  of  exceptions,  this  court,  without  inquiring  into  the  mer- 
its of  the  question  presented  by  the  bill  of  exceptions,  will,  by 
mandamus  absolute,  command  the  judge  to  certify  the  same  The 
decisions  of  this  court  in  Pitta  v.  Hall,  60  Ga.  389,  and  Batterer 
V.  Harden,  88  Ga.  145,  13  S.  E.  971,  in  so  far  as  they  held  to  the 
contrary,  are,  upon  a  review  thereof,  overruled. 
(Syllabus  by  the  Court.) 

Original  application  by  Will  Taylor  and  Fred  Perry  for 
Avrit  of  mandamus  against  Hon.  Seaborn  Ecese,  Judge.  Writs 
granted. 

Horace  M.  Holdcn  and  Alexander  ^y.  Stephens,  for  the  mov- 
ants. 

Lumpkin,  P.  J.  Upon  an  indictment  charging  Will  Taylor 
and  Fred  Perry  with  the  murder  of  Jep  Dennard,  they  were 
jointly  tried  and  convicted.  Without  moving  for  a  new  trial, 
each  by  his  counsel  sued  out  a  separate  bill  of  exceptions,  alleg- 
ing, among  other  things,  that  the  judge  erred  in  refusing  to  give 
in  charge  to  the  jury  certain  written  requests,  the  object  of 
which  was  to  have  the  jury  instructed  upon  the  law  of  volun- 
tary and  involuntary  manslaughter.  Each  of  these  bills  of  ex- 
ceptions set  forth  a  statement  of  the  evidence  introduced  at  the 
trial,  recited  that  the  judge  ruled  that  it  was  not  proper  to 
charge  the  jury  as  requested,  and  complained  that  the  verdict 
of  guilty  was  necessarily  controlled  by  this  ruling.  Each  bill 
of  exceptions  also  alleged  that  the  judge  failed  entirely  to  charge 
concerning  the  lower  grades  of  homicide.  Perry's  bill  of  ex- 
ceptions contained  one  assignment  of  error  which  was  not  in  that 
of  Taylor,  but  it  is  not  now  essential  to  state  or  discuss  tlio 
same.  The  judge  declined  to  certify  either  of  the  bills  of  ex- 
ceptions, basing  his  refusal  upon  the  ground  that,  in  the  absence 
of  a  motion  for  a  new  trial,  he  had  no  authoritv  so  to  do.  There- 
upon  each  of  the  accused  sued  out  an  application  for  mandamus, 
to  compel  the  judge  to  certify  his  bill  of  exceptions. 

We  have  reached  the  conclusion  that  it  was  the  duty  of  the 


trial,  he  may, 
exceptions,  for 

itions  tendered 
,  new  trial  had 
in  his  opinion, 
rlty  to  certify 
;  into  the  mer- 
tlons,  will,  by 
he  same  The 
,  and  Dotterer 
ey  held  to  the 


d  Perry  for 
udge. 


Writs 


for  the  mov- 

Will  Tayl.r 
d,  they  were 

a  new  trial, 
■ptions,  alleg- 
'using  to  give 
;he  object  of 
aw  of  voluii- 
le  bills  of  cx- 
)duced  at  the 
lot  proper  to 
t  the  verdict 
T.  Each  bill 
rely  to  charge 
's  bill  of  ex- 
as  not  in  that 
r  discuss  the 
e  bills  of  ex- 
n  the  absence 
to  do.  Tliere- 
»r  mandamus, 
i. 
?  duty  of  the 


TAYLOR  V.  REESE  — PERRY  v.  REESE. 


G30 


judge  to  certify  these  bills  of  exceptions,  notwithstanding  tlioro 
was  in  neither  case  a  motion  for  a  new  trial.  The  requests  to 
charge  were  manifestly  predicated  upon  the  theory  that,  under 
the  evidence  and  the  statements  made  by  the  accused  at  tlu; 
trial,  the  law  of  both  grades  of  manslaughter  was  involved.  An 
examination  of  these  bills  of  exceptions  makes  it  perfectly  clear 
that  in  suing  them  out  the  accused  were  seeking  to  avail  tlioui- 
selves  of  the  provisions  of  the  act  of  December  20,  189S,  "to 
dispense  with  a  motion  for  new  trial  and  filing  brief  of  the  evi- 
dence, and  to  authorize  a  direct  bill  of  exceptions,  in  certain 
cases,"  which  declares :  "That  from  and  after  the  passage  of  this 
act,  in  any  case  now  or  hereafter  brought  where  the  judgment, 
decree  or  verdict  has  necessarily  been  controlled  by  one  or  more 
rulings,  orders,  decisions  or  charges  of  the  court,  and  the  losing 
party  desires  to  except  to  such  judgment,  decree  or  verdict,  and 
to  assign  error  on  the  ruling,  order,  decision  or  charge  of  the 
court,  it  shall  not  be  necessary  to  make  a  motion  for  a  new  trial, 
nor  file  a  brief  of  the  evidence,  but  the  party  complaining  shall 
be  permitted  to  present  a  bill  of  exceptions  containing  only  so 
much  of  the  evidence  or  statement  of  facts  as  may  be  necessary 
to  enable  the  Supreme  Court  to  clearly  understand  the  ruling, 
order,  decision  or  charge  complained  of.''  Acts  of  1898,  p.  92. 
This  act  renders  unnecessar}'  the  filing  of  a  motion  for  a  new 
trial  when  the  case  depends  upon  a  controlling  question  of  law, 
and  the  complaint  is  that  the  trial  judge  committed  a  vital  error 
with  respect  to  the  same.  The  losing  party  in  any  case  might 
very  properly  concede  that,  imder  the  evidence  and  a  given 
charge,  the  verdict  against  him,  assuming  the  charge  to  be  cor- 
rect, was  demanded ;  yet,  at  the  same  time,  he  might  with  abun- 
dant reason  insist  that,  because  of  error  in  the  charge,  the  jury 
were  constrained  to  find  as  they  did.  The  correction  by  this 
court  of  such  an  error  results  in  a  new  trial.  The  act  of  1898 
simply  gives  in  explicit  terms  a  right  of  which  parties  litigant 
frequently  availed  themselves  before  its  passage.  See,  in  this 
connection,  Roberts  v.  Ned,  62  Ga.  163 ;  Trippe  v.  Wynne,  76 
Ga.  200 ;  Massengill  v.  First  Nat.  Banh,  Ibid.  341,  347 ;  Has- 
Mns  V.  Banh  of  State  of  Ga.,  100  Ga.  21Q ;  FranJdin  v.  Adams, 
101  Ga.  126,  28  S.  E.  Rep.  611.  We  do  not,  of  course,  wish  to 
be  understood  as  saying  that  a  party  can  except  to  or  complain 


I 


640 


AMERICAN  CRIMINAL  REPORTa 


fed 


\>'i 


ii 


of  a  verdict  as  being  contrary  to  oviilcnco  without  first  moving 
for  a  new  trial.  Jones  v.  Pitts,  98  Ga.  521,  25  S.  E.  Rep.  673 ; 
HoUey  V.  Porter,  105  Ga.  837,  31  S.  E.  Rop.  734. 

There  is  enough  in  each  of  the  bills  of  exceptions  tendered  to 
the  judge  to  enable  this  court  to  clearly  understand  and  pass 
upon  the  rulings  complained  of;  and  if  the  positions  taken  by 
counsel  for  the  accused  are  well  founded,  it  was  the  right  of  the 
accused  to  have  the  jury  determine  the  question  whether  or  not 
they  were  guilty  of  a  lower  grade  of  homicide  than  murder.  If 
the  judge  committed  the  errors  alleged,  they  were  deprived  of 
this  substantial  right,  and  the  verdicts  actually  rendered  were 
necessarily  so  far  controlled  by  the  judge's  action  as  to  necessi- 
tate a  new  trial. 

We  do  not,  however,  feel  called  upon,  in  dealing  with  those 
applications  for  mandi'mus,  to  pass  upon  the  merits  of  the  ques- 
tion presented  by  the  bills  of  exceptions.  It  is  true  that  in  the 
case  of  PUfs  v.  Hall,  GO  Ga.  389,  this  court  held  that  a  "trial 
judge  should  not  be  by  mandamus  compelled  to  sign  a  bill  of  ex- 
ceptions which  was  without  merit."  And  to  the  same  eifect  see 
Dotterer  v.  Harden,  88  Ga.  145,  13  S.  E.  Rep.  974,  in  which  it 
was  held  that:  "The  Supreme  Court  will  not  grant  a  mandamus 
nisi,  to  the  end  that  a  bill  of  exceptions  may  be  signed  and  certi- 
fied, where  it  affinnatively  appears  on  the  face  of  the  application 
that  the  decision  complained  of  and  sought  to  be  excepted  to  was 
correct,  inasmuch  as  in  such  case  the  mandamus  would  be  of  no 
practical  benefit  to  the  applicant."  Following  these  rulings 
would  require  in  every  case  like  the  present  ones  an  examination 
by  this  court  into  the  merits  of  the  questions  presented  by  the 
bill  of  exceptions  tendered,  and  an  ex  parte  decision  thereon  of 
the  main  case.  The  ruling  in  the  case  last  cited  was  based 
mainly  on  that  in  60  Ga.,  the  correctness  of  which  was  conceded, 
and  therefore  not  brought  under  review.  So  far  as  relates  to  the 
question  with  which  we  are  now  dealing,  neither  of  those  de- 
cisions can,  in  our  opinion,  be  regarded  as  sound.  We  have  ac- 
cordingly permitted  counsel  to  review  the  same,  and,  to  the  ex- 
tent indicated  in  the  second  headnote,  they  are  overruled.  The 
law  makes  it  the  imperative  duty  of  a  judge,  whenever  a  true 
bill  of  exceptions  is  tendered  to  him,  to  certify  it.  Upon  his  re- 
fusal to  sign,  and  certify  a  bill  of  exceptions,  it  is  the  right  of 


TAYLOR  V.  REESE -PERRY  v.  REESE. 


641 


'.rst  moving 
.  Rep.  573 ; 

tendered  to 
id  and  pass 
ns  taken  by 
right  of  the 
2ther  or  not 
nnrdcr.  If 
deprived  of 
idered  were 
3  to  necessi- 

;  with  those 
of  the  qiies- 
!  that  in  the 
hat  a  "trial 
a  bill  of  ex- 
ae  effect  see 

in  which  it 
I  mandamus 
id  and  certi- 

application 
jpted  to  was 
aid  be  of  no 
lese  rulings 
examination 
inted  by  the 
a  thereon  of 
I  was  based 
as  conceded, 
•elates  to  the 
of  those  de- 
We  have  ac- 
d,  to  the  ex- 
•ruled.  The 
never  a  true 
Upon  his  re- 
the  right  of 


the  party  tendering  the  same  to  apply  to  this  court  for  a  »irt/if?a- 
mm  nisi,  calling  upon  the  judge  to  state  the  reasons  for  his 
failure  or  refusal  to  certify.  It  then  becomes  the  duty  of  this 
court  to  consider  and  determine  the  validity  of  these  reasons 
and,  if  they  be  insuificient,  the  law  explicitly  declares  that  this 
court  "shall  issue  a  mandamus  absolute  commanding  the  judge 
to  sign  and  certify  the  bill  of  exceptions."  See  Civil  Code, 
§  5546. 

We  have  already  shown  that  the  reason  given  by  Judge  Koose 
for  declining  to  certify  the  present  bills  of  exceptions  was  in- 
sufficient. He  could  not,  with  propriety,  have  assigned  as  a 
reason  for  declining  to  certify  that  the  bills  of  exceptions  did 
not,  in  his  opinion,  show  the  commission  of  any  error.  If  tliis 
were  allowable,  every  judge  could  pursue  a  like  course  with  ref- 
erence  to  any  bill  of  exceptions  tendered  to  him,  and  the  in- 
evitable results  of  a  practice  of  this  kind  would  obviously  bo 
such  as  the  law  never  contemplated.  In  point  of  fact,  as  has 
been  seen.  Judge  Reese  did  not,  in  his  answer  to  the  mandamus 
nisi,  allege  such  a  reason  for  not  certifying,  and  we  are  fully 
satisfied  that  no  argument  based  upon  the  proposition  that  the 
rulings  excepted  to  were  correct  should  have  any  weight  in  de- 
termining whether  or  not  the  writs  of  mandamus  should  bo 
made  absolute.  Conceding  that  it  may  finally  be  held  that  tlio 
rulings  complained  of  were  free  from  error,  it  is  still  the  right 
of  the  applicants  to  have  their  cases  brought  to,  heard  in,  and 
determined  by  this  court  in  the  regular  and  lawful  way.  It 
therefore  becomes  our  duty  to  order  in  each  case  a  writ  of  man- 
damus absolute.  .  n  view  of  what  has  just  been  said,  we  could 
not  do  so  if  the  prior  decisions  of  this  court  cited  above  were  ad- 
hered to,  without  first  inquiring  into  the  merits  of  the  questions 
presented  by  these  bills  of  exceptions,  and  reaching  a  conclusion 
that  reversible  error  had  been  committed.  In  other  words,  we 
would  have  to  decide  the  eases  against  the  State  without  hearing 
from  her  counsel,  and  then,  merely  as  matter  of  form,  reverse 
the  judgments  when  the  cases  subsequently  reached  here  upon 
certified  bills  of  exceptions.  Such  a  practice  would  not  only  be 
anomalous,  but,  as  a  result  thereof,  it  would  frequently  happen 
ihat  cases  of  the  utmost  importance  would,  for  all  practical  pur- 
poses, be  finally  detennined  before  they  reached  this  court  in 
Vol.  XI— 41 


P 


^;:;t- 


111 


91 

HI 

m\ 

1 

1 

1 

1 

1 

643 


AMERICAN  CRIMINAL  REPORTS. 


the  mnniicr  proscrilicd  by  law,  and  that,  too,  without  even  notice 
to  parties  vitally  intere.stod.  Mandamus  absolute  ordered  in 
each  case.    All  concurring. 

Notes  (by  J.  P.  O.).— In  Stewart  v.  Huntlngtov  Bank,  11  S.  ft  R.  267, 
on  page  270,  appears  the  following:  "The  counsel  who  takes  an  ex- 
ception has  a  right  to  have  it  fixed  immediately;  but  this  may  be  done 
without  drawing  up  the  bill  in  full  form, — a  note  in  writing  is  sufll- 
cient;  and  such  a  note  should  never  be  omitted." 

In  Lyon  v.  Evans,  1  Ark.  349,  on  page  3G0,  appears  the  following: 
"The  object  of  bills  of  exception  Is  to  preserve  the  evidence  of  facts, 
which,  in  the  ordinary  course  of  proceedings  in  the  court,  would  not 
otherwise  appear  of  record  in  the  case.  The  bill  of  exceptions  inuat 
be  tendered  at  the  trial;  for,  if  the  party  acquiesced,  he  waives  it,  and 
shall  not  resort  back  to  his  exception  after  a  verdict  against  him, 
when,  perhaps,  if  he  had  stood  on  his  exceptions,  the  other  party  had 
more  evidence,  and  need  not  have  put  the  cause  on  that  point;  not  that 
It  need  be  drawn  up  in  form,  but  the  substance  must  be  reduced  to 
writing,  while  the  thing  is  transacting;  because  it  is  to  become  a 
record." 

Where  a  case  Is  being  disposed  at  one  hearing,  there  is  no  need  of 
preserving  separate  bills  of  exception;  for,  by  keeping  note  of  the 
points,  they  can  more  conveniently  be  placed  in  one  general  bill  of 
exceptions;  but  where  various  matter  are  passed  upon  at  different 
terms  of  court,  the  better  practice  is  to  preserve  the  matters  in  sep- 
arate bill  of  exceptions,  having  each  bill  signed  by  the  judge  before  his 
memory  as  to  such  matters  becomes  uncertain.  Where  a  mo  lion  for 
continuance  is  made  and  overruled.  It  is  consistent  with  good  practice 
to  have  a  bill  of  exceptions  incorporating  the  motion  immediately 
signed;  and  when  convenient  so  to  do,  the  attorney  should  have  such 
bill  of  exceptions  prepared  in  advance,  that  it  may  be  presented  for 
signature  at  the  time  of  the  ruling  upon  the  motion.  It  being  claimed 
by  one  or  more  courts  that  a  bill  of  exceptions  should  be  signed  in 
open  court,  prudence  should  prompt  the  attorney  to  present  it  in  open 
court,  when  such  can  be  done;  and  in  the  certificate  to  the  bill  of  ex- 
ceptions have  it  stated  that  the  same  is  presented,  signed,  and  sealed 
in  open  court;  and  also  have  the  clerk  note  such  fact  as  a  matter  of 
record. 


State  v.  McEwen. 

151  Ind.  485—51  N.  E.  Rep.  1053. 

Decided  November  29,  1898. 

Practice  on  Appeal:  Instructions — Evidence — Variance. 

1.  While  it  is  not  good  practice,  on  appeals  by  the  State,  to  set  out 
the  evidence  in  extenso,  still  there  should  be  enough  evidence  to 
show  whether  instructions  sought  to  be  reviewed  were  applicable 


STATE  f.  McEWEN. 


(!-l3 


even  notice 
ordered  in 


L  S.  &  R.  267. 
takes  an  ex- 
may  be  done 
itlng  is  Buffl- 

le  following: 
mce  of  facts, 
rt,  would  not 
options  inuat 
iraivea  it,  and 
against  him, 
ler  party  had 
lint;  not  that 
le  reduced  to 
to  become  a 

[s  no  need  of 

note  of  the 
meral  bill  of 

at  different 
atters  in  sep- 
Ige  before  his 
a  moiion  for 
good  practice 

immediately 
ild  have  such 
presented  for 
being  claimed 

be  signed  in 
mt  it  In  open 
the  bill  of  ex- 
id,  and  sealed 
s  a  matter  of 


to  the  evidence.  Without  some  foundation  of  fart  in  the  record, 
this  court  will  not  enter  into  an  abstract  discussion  of  polnis. 
2.  Where  the  indictment  avers  that  certain  moneys  stolen  were  the 
property  of  J.  A.  P.  and  Frank  A.  P.,  and  the  evldonie  was  that 
such  moneys  belonged  to  J.  A.  P.  and  Franklin  A.  P.,  there  would 
be  a  fatal  variance,  iinioss  the  evidence  also  showed  that  "Frank- 
lin A."  was  the  same  person  described  in  tlie  indictment  as 
"Frank  A.,"  and  was  commonly  known  by  that  name. 


Apj)cal  from  the  T  >hn8on  Coimty  Circuit  Court,  by  tlio  Stnto, 
to  test  the  correotnoss  of  the  ai^iion  of  the  trial  court  in 
and  refusing  certain  instnu  tions. 


giving 


riance. 

ite,  to  set  out 
;h  evidence  to 
rere  applicable 


1]'.  A.  Ketcham,  Atty.  Gen.,  Alonzo  Blair,  W.  E.  Deupree 
and  M.  L.  Herbert,  for  the  State. 

Miller  &  Bamett  and  William  A.  Johnson,  for  appellee. 

!^[cCABK,  J.  The  appellee  was  prosecuted  for  the  crime  of 
larceny  in  the  Johnson  circuit  court,  and  was  acquitted.  The 
State  appeals,  and  assigns  as  error  the  refusal  to  give  the  fol- 
lowing instruction  :  "I  instruct  you,  gentlemen  of  the  jury,  that 
if  the  indictment  in  this  cause  shows  and  alleges  that  the  prop- 
erly stolen  or  alleged  to  have  been  stolen  was  owned  at  said 
time  by  Jackson  A.  Pruitt  and  Frank  A.  Pruitt,  and  the  evi- 
dence shows  that  the  property  stolen  was  the  property  of  Jack- 
son A.  Pruitt  and  Franklin  A.  Pruitt,  and  that  said  Franklin  A. 
Pruitt  is,  and  for  years  has  been,  known  and  been  doing  busi- 
ness in  the  name  of  and  called  himself  Frank  A.  Pruitt,  then 
I  instruct  you  that  there  would  be  no  variance  between  the  evi- 
dence and  the  allegation  of  the  indictment  that  would  entitle 
the  defendant  to  an  acquitttal  under  the  law;  but  the  jury  are 
the  exclusive  judges  of  both  the  law  and  the  evidence."  The 
evidence  is  not  in  the  record,  nor  is  there  any  statement  in  the 
bill  of  exceptions  or  in  the  record  showing  that  this  instruction 
was  relevant  to  the  evidence,  and  hence  no  question  of  law  is 
presented  for  decision.  Without  some  statement  of  the  evi- 
dence, we  must  presume  that  the  instruction  was  refused  he- 
"ause  there  was  no  evidence  to  which  it  was  applicable.  ^A^lil0 
it  is  true  that  it  is  neither  necessary  nor  proper,  in  appeals  by 
the  State,  to  set  forth  the  evidence  in  full,  it  is  also  time  that 
there  must  be  some  statement  in  the  bill  of  exceptions  showing 
that  ther?'  was  evidence  to  which  the  institictions  were  relevant. 


1 


i'i  i 


'*' 


r  I 


C44 


AMERICAN  CRIMINAL  REPORTS. 


It  is  a  well-established  principle  in  appellate  procedure  t];at  the 
court  will  not  decide  mere  abstract  questions,  and,  where  there 
are  no  facts  stated,  nothing  but  abstract  questions  can,  in  such 
a  case  as  this,  arise  upon  a  ruling  refusing  instructions.  Stale 
V.  Kern,  127  Ind.  4G5,  2G  X.  E.  Rep.  1076. 

The  giving  of  an  instruction  is  assigned  by  the  State  as  error, 
reading  as  follows :  "The  names  of  the  persons  who  are  alleged 
to  be  the  owners  of  the  money  alleged  to  have  been  stolen  are 
material  allegations  of  the  indictment,  and  must  be  proven  as 
charged ;  so,  if  you  find  from  the  evidence  that  the  name  of  one 
of  the  owners  of  the  money  alleged  to  have  been  stolon  was 
Franklin  A.  Pruitt,  then  you  must  find  the  defendant  not 
guilty."  The  alleged  names  of  the  owners  of  the  money  alleged 
to  have  been  stolen  were  Jackson  A.  Pruitt  and  Frank  A.  Pruitt. 
If  the  evidence  showed  that  the  name  by  which  Franklin  A. 
Pruitt  was  commonly  known  was  Frank  A.  Pruitt,  even  tho\igh 
Franklin  A.  Pruitt  was  his  correct  name,  the  instniction  was 
erroneous,  because  the  name  by  which  a  person  is  commonly 
known  may  be  employed  in  an  indictment,  and  it  will  be  good 
if  the  proof  shows  that  he  is  commonly  known  by  that  name. 
Bishop's  Xew  Criminal  Proc,  §  G8G ;  Wharton's  Criminal  Evi- 
dence, §  95 ;  Ehlert  v.  State,  03  Ind.  76 ;  Henry  v.  State,  113 
Ind.  304,  307,  15  X.  E.  Rep.  593 ;  Walter  v.  State,  105  Ind. 
589,  5  K  E.  Rep.  735 ;  Kntger  v.  State,  135  Ind.  573,  35  X.  E. 
Rep.  1049;  IILc  v.  People,  157  111.  382,  41  N.  E.  Rep.  8G2. 
But,  the  evidence  not  being  in  the  record,  and  no  statement 
therein  as  to  what  the  evidence  showed,  we  cannot,  as  the  attor- 
ney for  the  State  seems  to  suppose,  presume  that  the  evidence 
showed  that  Franklin  A.  Pruitt  was  commonly  knowTi  by  the 
name  of  Frank  A.  Pruitt.  In  the  absence  of  such  evidence  or 
statement  in  the  record,  proof  that  the  name  of  one  of  the  own- 
ers of  the  stolen  money  was  Franklin  A.  Pruitt  instead  of  Frank 
A.  Pruitt  would  be  a  fatal  variance.  See  the  authorities  last 
above  cited.  Therefore  we  cannot  say  that  the  court  erred  in 
giving  the  instruction.    The  appeal  is  not  sustained. 


ure  tl;at  tho 
where  there 
can,  in  such 

ions.    Slate 

ate  as  error, 
»  are  alloged 
n  stolen  are 
)e  proven  as 
name  of  one 
L  stolon  was 
icndant  not 
oney  alleged 
ik  A.  Pruitt, 
Franklin  A. 
even  though 
tniction  was 
IS  commonly 
will  be  good 
r  that  name, 
riminal  Evi- 
y.  State,  113 
te,  105  Ind. 
73,  35  X.  E. 
L  Rep.  802. 
10  statement 
as  the  at  tor- 
tile evidence 
nown  by  the 
1  evidence  or 
;  of  the  own- 
?ad  of  Frank 
thorities  last 
mrt  erred  in 


BROWNING  V.  STATE.  545 


Browning  v.  State. 

64  Neb.  203—74  N.  W.  Rep.  631. 

Decided  March  17,  1898. 

Practice:  Necessity  for  arraignment  and  plea. 

1.  A  Judgment  of  conviction  of  felony  cannot  stand  where  there  was 

no  arraignment  of,  and  plea  by,  the  accused  before  the  trial. 

2.  Allyn  v.  State,  21  Neb.  593,  distinguished. 

3.  When  it  is  discovered  during  the  trial  on  the  charge  of  a  felony 

that  there  has  been  no  arraignment  and  plea,  the  court  should 
not  proceed  with  the  trial  without  arraigning  the  accused,  enter- 
ing his  plea,  and  causing  the  jury  to  be  resworn  and  the  wit- 
nesses to  be  re-examined. 
(Syllabus  by  the  Court.) 

Error  to  the  District  Court  of  Gage  County;  Stull,  Judge. 
Keversed. 

L.  W.  Colhij,  for  the  plaintifF  in  error. 

C.  J.  Smyth,  Attorney-General,  and  Ed.  P.  Smith,  Deputy 
Attorney-General,  for  the  State. 

XoRVAL,  J.  This  was  a  prosecution  by  information  filc<l  in 
the  court  below,  by  the  county  attorney,  charging  the  prisoner 
with  the  crime  of  burglary.  Uix)n  the  trial  the  accused  was 
found  guilty,  a  motion  for  a  new  trial,  and  also  a  motion  in  ar- 
rest of  judgment,  were  filed  and  overruled,  and  he  was  sentenced 
by  the  court  to  imprisonment  in  the  penitentiary  for  a  term  of 
vears.  A  reversal  is  asked  because  the  defendant  was  not  ar- 
raigned,  and  no  plea  was  entered  to  the  information  by  him,  or 
in  his  behalf,  prior  to  the  commencement  of  the  trial.  This 
court  held,  in  Barker  v.  State,  54  Xeb.  53,  that  it  was  indis- 
pensable to  the  validity  of  a  conviction  of  a  felony  that  the  rec- 
ord affirmatively  show  the  accused,  before  trial,  was  arraigned, 
and  that  he  pleaded  to  the  infonnation  or  indictment,  or,  in  case 
he  stands  mute  or  refuses  to  plead,  that  the  court  entered  tho 
plea  of  not  guilty  for  him.  A  re-examination  of  the  question 
satisfies  us  that  the  conclusion  then  reached  is  sound  and  should 
be  adhered  to.  In  addition  to  the  authorities  mentioned  in  the 
opinion  in  that  case  the  doctrine  announced  is  sustained  ])y  the 
following:  State  v.  Hughes,  1  Ala.  G55;  Chllds  v.  Slate,  97 


616 


AMERICAN  CRIMINAL  REPORTa 


Ala.  40;Bou'cn  v.  State,  98  Ala.  83;  People  v.  Corhetl,  28  Cal. 
328;  McJwiJiins  v.  State,  10  Ind.  140;  Bochy  v.  State,  19  Ind. 
225 ;  T'mdall  v.  State,  71  Ind.  314 ;  Bowcn  v.  State,  108  Ind. 
411 ;  Miller  v.  People,  47  111.  App.  472 ;  Gould  v.  People,  89 
111.  21G ;  Parkinson  v.  People,  135  111.  401 ;  State  v.  Epps,  27 
La.  Ann.  227;  State  v.  Ford,  30  La.  Ann.  311;  State  v.  Chris- 
tian, 30  La.  Ann.  307;  State  v.  Rerells,  31  La.  Ann.  387;  State 
V.  Hunter,  43  La.  Ann.  15G;  Wilson  v.  State,  42  Miss.  639; 
State  V.  Iluhhell,  55  Mo.  App.  2G2;  State  v.  Saunders,  53  Mo. 
234 ;  State  v.  Barnes,  59  Mo.  154 ;  State  v.  Montgomery,  63  Mo. 
200 ;  State  v.  A  gee,  68  Mo.  264 ;  ^*ate  v.  Vanhook,  88  Mo.  105 ; 
Early  v.  State,  1  Tex.  App.  248 ;  McFarland  v.  State,  18  Tex. 
App.  313 ;  Roe  v.  State,  19  Tex.  App.  89 ;  Jefferson  v.  State, 
24  Tex.  App.  535 ;  iJ/unson  v.  State,  11  S.  W.  Rep.  (Tex.)  114; 
S perry  v.  Commonwealth,  9  Leigh  (Va.),  261;  Elick  v.  Wash- 
ington  Territory,  1  Wash.  Ter.  136 ;  Douglass  v.  State,  3  Wis. 
820;  Grain  v.  United  States,  162  U.  S.  625.  There  are  a  few 
decisions  ■which  hold  that  an  arraignment  and  plea  may  bo 
■waived  by  tha  prisoner  in  all  except  capital  cases,  but  such  de- 
cisions, for  the  most  part,  were  rendered  under  statutes  different 
from  ours.  Some  courts  have  decided,  among  others  our  own, 
the  mere  placing  the  defendant  on  trial  without  arraignment 
or  a  plea  to  the  indictment  will  not  work  a  reversal  of  a  con- 
viction for  a  misdemeanor.  Allyn  v.  State,  21  Keb.  593. 
Whether  that  decision  is  right  or  wrong  we  are  not  called  upon 
to  decide,  since  the  scope  of  the  opinion  is  limited  to  trials  for 
misdemeanors.  It  has  no  application  to  prosecutions  and  con- 
victions for  felonies. 

This  record  shows  that,  after  the  jury  had  been  impaneled 
and  sworn  and  the  testimonv  of  two  witnesses  on  behalf  of  the 
State  had  been  taken,  the  defendant,  over  his  objection  and  ex- 
ception, was  arraigned,  and  refusing  to  plead,  the  court  entered 
for  him  a  plea  of  not  guilty.  It  is  argued  that  this  cured  the 
error  committed  by  the  failure  to  have  the  defendant  arraigned 
and  plead  before  entering  upon  the  trial.  We  do  not  think  so. 
The  statutes  of  this  State  contemplate  that  these  steps  shall 
precede  the  trial.  The  object  of  requiring  an  arraignment  and 
plea  in  a  criminal  case  is  to  inform  the  accused  of  the  nature  of 
the  charge  against  him,  and  to  make  up  an  issue  for  trial.    Until 


ett,  28  Cal. 
lie,  19  Ind. 
e,  108  Ind. 
People,  89 
V.  Epps,  27 
te  V.  Chris- 
^87;  State 
Miss.  639; 
crs,  53  Mo. 
ery,  63  Mo. 
8  Mo.  105 ; 
lie,  18  Tex. 
on  V.  State, 
:Tex.)  114; 
ck  V.  Wash- 
tate,  3  Wis. 
•e  are  a  few 
lea  may  bo 
Hit  such  do- 
tes ditrereiit 
srs  our  own, 
arraignment 
al  of  a  co?i- 
Xeb.    593. 
called  upon 
to  trials  for 
ins  and  con- 

i  impaneled 
ebalf  of  tho 
tion  and  ex- 
)urt  entered 
is  cured  tho 
it  arraigned 
lOt  think  so. 
steps  shall 
gnment  and 
16  nature  of 
rial.    Until 


BROWNING  V.  STATE. 


647 


a  plea  of  not  guilty  is  entered,  there  is  no  issue  of  fact  for  the 
jury  to  determine.  If  the  arraignment  and  plea  may  take  place 
during  the  progress  of  the  trial,  with  the  same  propriety  the  de- 
fendant can  be  arraigned,  and  h.s  plea  entered  after  verdict  and 
at  the  time  the  court  passes  sentence.  There  can  be  no  valid 
trial  for  a  felony  without  an  arraignment  and  plea  before  the 
trial  is  entered  upon. 

In  Clark's  Criminal  Procedure,  section  128,  it  is  said:  "Not 
only  is  the  arraignment  necessary,  but  the  plea  is  equally  so,  for 
without  a  plea  there  can  be  no  issue  to  try.  And  the  fact  of  ar- 
raignment and  plea  must  appear  on  the  record.  By  weight  of 
authority,  the  arraignment  and  plea  must  precede  the  impanel- 
ing and  swearing  of  the  jury.  An  omission  thereof  cannot  be 
cured  by  an  arraignment  and  plea  after  the  trial  has  com- 
menced." Numerous  authorities  are  cited  in  the  note  which 
sustain  the  text. 

,  In  1  Bishop,  Criminal  Procedure,  section  733,  the  rule  is 
stated  thus:  "Without  plea  there  can  be  no  valid  trial.  It  is 
so  even  though  the  defendant  went  voluntai"'^  and  without  ob- 
jection to  trial,  knowing  there  was  no  plea.  It  must  be  before 
the  jury  are  sworn;  afterward  the  plea  is  too  late." 

Collier,  C.  J.,  in  State  v.  Hughes,  1  Ala.  G57,  observed:  "The 
idea  of  selecting  and  swearing  a  jury  to  try  a  case  which,  in  its 
progressive  steps,  has  not  reached  the  stage  when  it  is  triable,  is 
a  perfect  anomaly.  The  oath  administered  to  the  jury  related 
to  the  present  time,  and  cannot  authorize  them  to  try  a  caso 
which  is  afterwards  Maced  in  a  condition  for  trial ;  until  tlio 
prisoner  was  called  upon  for  his  plea,  it  could  not  be  known 
whether  th.Te  would  be  an  issue  of  fact  for  the  jury,  or  what  the 
issue,  if  any,  might  bo.  The  prisoner,  instead  of  submitting 
the  question  of  his  guilt,  might  have  pleaded  in  abatement,  or 
have  presented  to  the  court  legal  objections  to  the  indictment." 

In  Parkinson  v.  People,  135  111.  401,  the  defendant  was  con- 
victed of  rape.  The  jury  Avas  impaneled  and  sworn,  and  one 
witness  was  partly  examined,  when  it  was  discovered  that  there 
was  no  arraignment  or  plea.  The  defendant  was  tlicrenpon  ar- 
raigned, a  plea  of  not  guilty  was  interposed,  and  tho  trial  pro- 
ceeded without  reswearing  the  jury.  It  was  held  the  verdict 
and  judgment  were  erroneous,  because  the  arraignment  and  plea 


^■i 


i-  ■-.;  I 


|« 


.   -1', 


i.JI 


i 

i 

1 

! 

■ 

HaVff 

n 

; 

lli 

: 

iSIs  E^ 

in 


!'  r 


648 


AMERICx\N  CRIMINAL  REPORTS. 


did  not  precede  the  selection  and  swearing  of  the  jury,  and  that 
the  arraignment  made  and  plea  entered  during  the  trial  did  not 
purge  the  record  of  the  error. 

Grain  v.  United  States,  162  U.  S.  625,  was  a  conviction  for 
forgery,  and  a  reversal  was  sought  on  the  ground  that  there  had 
been  no  fonnal  arraignment  and  plea  before  the  beginning  of 
the  trial.  The  record  showed  the  appearance  of  the  prosecuting 
attorney;  the  appearance  of  the  accused  in  person  by  his  coun- 
sel; an  order  by  the  court  that  a  jury  come  "to  try  the  issue 
joined;"  the  selection  of  the  jury  which  were  "sworn  to  try 
the  issue  joined  and  a  true  verdict  render;"  the  trial,  verdict 
of  guilty  and  judgment  entered  thereon.  The  conviction  was 
reversed,  because  it  did  not  affinnatively  appe^jr  that  the  defend- 
ant was  formally  arraigned  or  that  he  pleaded  to  the  indictment 
before  trial.  Mr.  Justice  Harlan  delivered  the  opinion  of  the 
court,  and,  after  reviewing  the  authorities  on  the  question,  said : 
"Withoiit  citing  other  authorities  we  ihink  it  may  be  stated  to 
be  the  prevailing  rule,  in  this  country  and  in  England,  at  least 
in  cases  of  felony,  that  a  plea  to  the  indictment  is  necessary  bo- 
fore  the  trial  can  be  pi'operly  commenced ;  and  that  unless  this 
fact  appears  affinnatively  from  the  record  the  judgment  cannot 
be  sustained.  Until  the  accused  pleads  to  the  indictment  and 
thereby  indicates  the  issue  submitted  by  him  for  trial,  there  is 
nothing  for  the  jury  to  try;  and  the  fact  that  the  defendant  did 
so  plead  should  not  be  loft  to  be  inferred  from  a  general  recital 
in  some  order  that  the  jury  were  sworn  to  'try  the  issue  joined.' 
The  record  should  be  a  pei'manent  memorial  of  what  was  the 
issue  tried,  and  show  whether  the  judgment  whereby  it  was  pro- 
posed to  take  the  life  of  the  accused  or  to  deprive  him  of  his 
liberty  was  in  accordance  with  the  law  of  the  land.  .  .  . 
Where  the  crime  charged  is  infamous  in  its  nature,  are  we  at 
liberty  to  guess  that  a  plea  was  made  by  or  for  the  accused,  and 
then  guess  again  as  to  what  was  the  nature  of  tliat  plea  ?  .  .  . 
We  are  of  opinion  that  the  rule  requiring  the  record  of  a  trial 
for  an  infamous  crime  to  show  affirmatively  that  it  was  de- 
manded of  the  accused  to  plead  to  the  indictment,  or  that  he  did 
so  plead,  is  not  a  matter  of  form  only,  but  of  substance  in  the 
administration  of  the  criminal  law;  consequently,  such  a  defect 
in  the  record  of  a  criminal  trial  is  not  cured  by  section  1025  of 


BROWNING  V.  STATE. 


649 


y,  and  that 
■ial  did  not 

viction  for 
t  there  had 
ginning  of 
prosecuting 
y  his  conn- 
the  issue 
•orn  to  try 
ial,  verdict 
:iction  was 
the  defend- 
indictment 
lion  of  the 
stion,  said : 
>e  stated  to 
id,  at  least 
jcessarv  be- 
unless  this 
lent  cannot 
3tiiient  and 
al,  there  is 
'endant  did 
eral  recital 
sue  joined.' 
at  was  the 
it  was  pro- 
him  of  his 
d.  .  .  . 
are  wc  at 
!cused,  and 

i   »  •         •  • 

1  of  a  trial 
it  was  do- 
that  he  did 
mce  in  the 
eh  a  defect 
on  1025  of 


the  Revised  Statutes,  but  involves  the  substantial  rights  of  the 
accused.  It  is  true  that  the  constitution  does  not,  in  terms  de- 
clare that  a  person  accused  of  crime  cannot  be  tried  until  it  be 
demanded  of  him  that  he  plead,  or  unless  he  pleads,  to  the  in- 
dictment. But  it  does  forbid  the  deprivation  of  liberty  without 
due  process  of  law ;  and  due  process  of  law  requires  that  the  ac- 
cused plead,  or  be  ordered  to  plead,  or,  in  a  proper  case,  that  a 
plea  of  not  guilty  be  filed  for  him,  before  his  trial  can  rightfully 
proceed ;  and  the  record  of  his  conviction  should  show  distinctly, 
and  not  by  inference  merely,  that  every  step  involved  in  due 
process  of  law,  and  essential  to  a  valid  trial,  was  taken  in  the 
trial  court;  otherwise  the  judgment  will  be  erroneous." 

In  State  v.  Montgomery,  63  ^lo.  290,  it  was  decided  that  the 
failure  to  arraign  a  prisoner  and  enter  his  plea  before  the  jury 
is  sworn  is  reversible  error,  and  that  the  entry  of  a  plea  after- 
wards is  too  late.  See  Early  v.  State,  1  Tex.  App.  248 ;  State 
V.  Hunger,  43  La.  Ann.  157;  People  v.  Corhcit,  28  Cal.  328; 
Douglass  v.  State,  3  Wis.  820 ;  Territory  v.  Brash,  32  Pac.  Eep. 
(Ariz.)  260;  State  v.  Baker,  57  Kan.  541. 

The  attorney-general  has  cited  cases  which  are  in  conflict 
with  the  above,  but  we  decline  to  follow  them.  After  the  ac- 
cused was  arraigned  the  jury  should  have  been  resworn  and  the 
witnesses  already  examined  should  have  been  re-examined.  Had 
this  been  done,  the  omission  of  the  arraignment  and  plea  before 
the  selection  of  the  jury  would  not  have  been  available.  Weaver 
V.  State,  83  Ind.  289 ;  State  v.  Weber,  22  Mo.  321 ;  Disney  v. 
Commonicealth,  5  S.  W.  Rep.  (Ky.)  360.  For  the  error  in- 
dicated, the  judgment  is  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 

Notes  (by  J.  F.  G.).— In  the  case  of  Barker  v.  State,  referred  to  in 
the  above  opinion,  the  cases  cited,  to  the  effect  that  a  judgment  with- 
out a  plea  should  be  reversed,  are  as  follows:  Burley  v.  State,  1  Neb. 
385;  State  v.  Williams,  117  Mo.  379;  Johnson  v.  People,  22  111.  318; 
Aylesworth  v.  People,  65  111.  301;  Hoskins  v.  People,  84  111.  87;  Darts 
V.  State,  38  Wis.  487;  State  v.  Wilson,  42  Kan.  587;  Ray  v.  People,  6 
Colo.  231;  People  v.  Moody,  G9  Cal.  184;  Grigg  v.  People,  31  Mich.  471. 

The  doctrine  applies  to  misdemeanors  as  well  as  to  felonies. — In 
Johnson  v.  People,  22  111.  314,  the  indictment  was  for  conspiracy.  The 
following  paragraph  is  an  excerpt  from  the  opinion  in  that  case: 

"The  18l8t  section  of  the  Criminal  Code  (Scates'  Comp.  407)  pro- 
vides that,  upon  the  arraignment  of  a  prisoner,  it  shall  be  sufficient, 


m 


-.; ! 


I'M 


i    i 


650 


AMERICAN  CRIMINAL  REPORTS. 


without  any  other  form,  for  him  or  her  to  declare  orally,  by  himself 
or  herself,  or  his  or  her  counsel,  that  he  or  she  is  not  guilty;  which 
plea  the  clerk  is  required  to  Immediately  enter  on  the  minutes  of  the 
court,  and  the  mentlou  of  the  arraignment  and  such  plea  shall  con- 
stitute the  Issue  between  the  People  and  the  prisoner,  and  If  the  clerk 
should  neglect  to  insert  in  the  minutes  of  the  court  the  arraignment 
and  plea,  it  provides  that  it  shall  be  done  under  the  order  of  the  court, 
and  then  the  error  or  defect  shall  be  cured.  The  arraignment  and 
plea  has  always,  by  the  practice  in  cases  of  felonies,  been  regarded  as 
essential  to  the  formation  of  the  issue  to  be  tried  by  the  jury,  but  in 
cases  of  misdemeanor  the  practice  allows  the  plea  of  not  guilty  to  be 
entered  without  arraignment  and  may  be  entered  by  counsel.  But  it 
is  believed  that  the  practice  is  uniform,  both  in  England  and  this 
country,  in  requiring  the  formation  of  an  Issue  to  sustain  a  verdict. 
Without  it  there  Is  nothing  to  be  tried  jy  the  jury.  If  the  record  had 
shown  that  the  trial  was  by  consent,  in  the  case  of  a  misdemeanor,  it 
might  be  held  to  cure  the  defect,  but  when  the  trial  does  not  appear 
to  have  been  so  had,  no  such  Intendment  can  be  indulged.  Or,  in  case 
there  had  been  a  plea  entered,  and  the  clerk,  by  an  omission  of  his 
duty,  had  failed  to  enter  it  upon  the  record,  the  prosecuting  attorney 
might  have  cured  the  defect  by  procuring  such  an  entry  under  the 
order  of  the  court.  But  the  statute  has  provided  no  other  mode  of  ob- 
viating the  objection,  and,  unless  waived  by  the  defendant,  it  must  be 
held  to  be  error.  In  this  case  the  error  has  not  been  cured  by  either 
of  these  modes,  and  the  judgment  should  have  been  arrested  for  the 
want  of  such  plea." 

In  AyJesworth  v.  People,  65  111.  301,  a  conviction  for  selling  liquor 
without  a  license  was  reversed,  Mr.  Justice  McAllister  saying:  "The  rec- 
ord should  also  show  that  the  plea  of  not  guilty  was  entered.  With- 
out it  there  is  nothing  for  the  jury  to  try." 

The  old  English  practice. — Under  the  old  75n8;\;''*  V-.v, ,  Jf  a  prisoner 
stood  mute  and  failed  to  plead  to  the  indict'jien'  :.  :■•■  y  "aa  Impaneled 
to  determine  whether  his  conduct  came  fror.  •-  :,!>iacy  or  from  a 
natural  impediment.    According  to  Blackstono  k  4„  p.  325),  If  the 

prisoner  was  found  to  be  obstinately  mute,  and  tue  inriictment  was  for 
high  treason,  it  was  settled  that  his  silence  was  equivalent  to  a  con- 
viction, and  that  judgment  and  execution  should  follow,  which  that 
author  claimed  applied  to  the  lowest  species  of  felony  (petit  larceny) 
and  misdemeanors;  but  the  same  author  says  that  upon  appeals  or  in- 
dictments for  other  felonies,  or  petit  treason,  according  to  the  ancient 
law  the  prisoner  was  not  deemed  convicted,  but,  because  of  his  ob- 
stinacy, should  receive  "the  terrible  sentence  of  penance,  or  peine." 
A  respite  for  a  few  hours  was  permitted  the  prisoner,  the  sentence 
being  distinctly  read  to  him,  "that  he  might  know  his  danger;  and, 
after  all,  if  he  continued  obstinate,  his  offense  was  clergyable;  he  had 
the  benefit  of  clergy  allowed  him,  even  though  too  stubborn  to  pray 
It."  Blackstone  says  that  the  punishment  "was  purposely  ordained 
to  be  exquisitely  severe,  that  by  that  means  it  might  rarely  be  put  In 
execution."    He  describes  the  punishment  as  follows   (p.  327): 

"That  the  prisoner  be  remanded  to  the  prison  from  whence  he  came. 


STATE  V.  REED. 


651 


r,  by  himself 
guilty;  which 
Inutes  of  the 
Ba  shall  con- 
1  If  the  clerk 
arraignment 
of  the  court, 
ignment  and 
I  regarded  as 
jury,  but  in 
guilty  to  be 
insel.  But  it 
ind  and  this 
iln  a  verdict, 
le  record  had 
jdemeanor,  it 
!S  not  appear 
.  Or,  in  case 
ission  of  his 
ting  attorney 
ry  under  the 
:  mode  of  ob- 
it, it  must  be 
red  by  either 
ested  for  the 

selling  liquor 
ng:  "The  rec- 
tered.    With- 

if  a  prisoner 
as  impaneled 
y  or  from  a 
I.  325),  If  the 
ment  was  for 
ent  to  a  con- 
■,  which  that 
)etit  larceny) 
ippeals  or  in- 
0  the  ancient 
se  of  his  ob- 
■e,  or  peine." 

the  sentence 
danger;  and, 
rable;  he  had 
•born  to  pray 
3ely  ordained 
ely  be  put  in 

327): 
ence  he  came. 


and  put  In  a  low,  dark  chamber,  and  there  be  laid  on  his  back,  on  the 
bare  floor,  naked,  unless  decency  forbids;  that  there  be  placed  upon 
his  body  as  great  a  weight  of  iron  as  he  could  bear,  and  more;  that  he 
should  have  no  sustenance,  save  only,  on  the  first  day,  three  morst-ls 
of  the  worst  bread,  and,  on  the  second  day,  three  draughts  of  standing 
water  that  should  be  nearest  the  prison  door;  and  in  this  situation 
this  should  be  alternately  his  daily  diet  till  he  died,  or  (as  anciently 
the  judgment  ran)  till  he  anstcered." 

Thorley's  Case  (Kelyng,  a?).— Kelyng  in  reporting  the  proceedings 
at  the  Newgate  Sessions  in  the  fourteenth  year  of  Charles  II.  gives 
the  following  report  (the  spelling,  capitals,  and  italics  are  as  they  ap- 
pear In  the  report) ; 

One  stand  Mute.  Thumbs  tyed  together  with  Whipcord. 

At  the  same  Sessions,  George  Thorley,  being  indicted  for  Robbery, 
refused  to  plead,  and  his  two  Thumbs  were  tyed  together  with  Whip- 
cord, that  the  Pain  of  that  might  compel  him  to  plead,  and  he  was  sent 
away  so  tyed,  and  a  Minister  perswaded  to  go  to  him  to  perswade  him; 
And  an  Hour  after  he  was  brought  again  and  pleaded.  And  this  was 
said  to  be  the  constant  Practice  at  Newgate. 

A  New  England  victim.— It  is  said  that  during  the  prosecutions  in 
New  England,  for  that  ficticious  crime  of  witch-craft,  a  respecticable 
citizen  being  so  accused,  well  knowing  that  by  reason  of  the  excite- 
ment and  religious  fervor  of  the  times,  a  plea  of  not  guilty  and  trial 
would  result  in  a  conviction,  with  confiscation  of  property;  and  that 
the  same  judgment  would  follow  a  plea  of  guilty,  he  refused  to  plead, 
thereby  preventing  a  conviction,  and  enabling  his  family  to  retain  the 
property.  The  court  ordered  that  he  be  pressed,  because  of  his  ob- 
stinacy. During  this  process,  the  dying  victim's  tongue  protruded, 
which  so  shocked  the  sensibilities  of  the  devout  sheriff,  that  he  pushed 
it  back  with  his  cane. 


State  v.  Rked. 

76  Miss.  211—71  Am.  St.  Rep.  528,  43  L.  R.  A.  134,  24  So.  Rep.  308. 

Decided  December  19,  1898. 

Railroads:    Rights  of  hackmen. 

A  railroad  company  cannot  confer  on  certain  hackmen  the  exclusive 
right  to  enter  its  station  grounds  and  solicit  patronage  from  in- 
coming passengers  to  the  exclusion  of  others. 

Appeal  from  the  Cireiiit  Court  of  Warren  County;  Hon. 
W.  K.  McLaurin,  Judge. 

Joseph  Reed  was  prosecuted  under  section  1320  of  the  Code 
of  1892  for  going  upon  the  inclosed  lands  of  another  without 


>»i| 

'■J! 


1f^ 


¥ 


m 

''■:■  mi 


652 


AMERICAN  CRIMINAL  REPORT8L 


the  owner's  consent,  and  after  being  notified  not  to  do  so.  He 
was  fined  by  a  justice  of  the  peace,  but  upon  appeal  the  circuit 
court  found  for  the  defendant ;  and  the  State  appeals.    Affirmed. 

McWillie  &  Thompson,  for  the  Alabama  &  Vicksburg  Rail- 
way Company. 

/?.  L.  McLaurin,  for  the  appellee. 

Woods,  C.  J.,  delivered  the  opinion  of  the  court 

Joseph  Eeed,  the  appellee,  was  arrested  upon  affidavit  charg- 
ing him  with  trespassing  up'in  private  premises  belonging  to 
the  Alabama  &  Vicksburg  Railway  Company,  and  was,  before 
the  justice  of  the  peace,  tried  and  convicted.  He  appealed  from 
that  conviction  to  the  circuit  court  of  Warren  county,  and  was 
there  tried  upon  an  agreed  statement  of  facts,  and  was,  by  the 
judgment  of  that  court,  acquitted  of  the  charge  and  discharged. 
From  this  judgment  of  the  circuit  court  the  State  prosecutes 
this  appeal. 

From  the  agreed  statement  of  facts  it  appears  that  the  depot 
of  the  railway  company  in  the  city  of  Vicksburg  is  surrounded 
by  a  fence,  and  that  there  is  a  "considerable  inclosure  of  grounds 
adjacent  thereto."  It  further  appears,  also,  that  "within  said 
inclosure  around  the  depot  is  the  most  convenient  and  best  place 
for  hackmen  and  busmen  to  discharge,  solicit  and  receive  pas- 
sengers departing  and  arriving  on  the  passenger  trains  of  said 
company,  and  that  any  hackman  or  busman  who  had  the  ex- 
chisive  privilege  of  entering  this  inclosure  and  soliciting  pas- 
sengers there,  would  have  an  advantage  over  hackmen  or  busmen 
excluded  therefrom,  so  far  as  passengers  arriving  on  said  trains 
was  concerned." 

These  facts,  moreover,  appear  in  the  agreed  statement,  viz. : 
that  the  railway  company  granted,  in  June,  1894,  the  exchisive 
privilege  of  entering  said  inclosure  and  soliciting  passengers 
therein  to  said  Peine,  and  that  Peine  was  a  person  engaged  in 
the  hack,  bus  and  general  transfer  business  in  Vicksburg,  and 
that,  after  said  exclusive  grant  to  Peine,  all  other  hackmen  and 
busmen  were  excluded  from  entering  said  inclosure  for  the  pitr- 
pose  of  soliciting  passengers  therein,  and  were  notified  not  to 
enter  said  inclosure  for  that  purpose,  under  threat  of  being 
prosecuted  as  trespassers ;  that  the  appellee.  Reed,  after  having 


STATE  V.  REED. 


653 


do  90.  He 
I  the  circuit 
.    Affirmed. 

:sburg  Raii- 


davit  charg- 
(clonging  to 
was,  before 
pealed  from 
ty,  and  was 
was,  by  the 
discharged. 
J  prosecutes 

jt  the  depot 
surrounded 
3  of  grounds 
within  said 
d  best  place 
receive  pas- 
ains  of  said 
had  the  ex- 
liciting  pas- 
a  or  busmen 
I  said  trains 

eimont,  viz. : 
he  exchisive 
■  passengers 
engaged  in 
ksburg,  and 
ackmen  and 
for  the  pitr- 
;ified  not  to 
at  of  being 
ifter  having 


been  notified  not  to  enter  said  inclosiin  or  such  purpose,  drove 
his  hack  into  the  inclosure,  and  while  therein  solicited  and  re- 
ceived a  passenger,  and  then  drove  away,  and  that  in  doing  this 
he  created  no  disturbance  or  disorder;  that  Cherry  street  is 
about  one  hundred  and  fifty  feet  from  the  depot,  and  that  from 
the  depot  to  Cherry  street,  whore  hacks,  other  than  Peine's,  can 
stand,  there  is  a  good  sidewalk.  In  a  word,  Peine's  hacks  have 
the  exclusive  privilege  of  entering  the  inclosure  surrounding  the 
depot  and  soliciting  incoming  passengers,  while  all  other  hacks 
are  excluded  from  the  inclosure  and  must  stand  outside  and 
about  one  hundred  and  fifty  feet  from  the  depot,  and  in  an  open 
street. 

It  is  admitted  in  the  agreed  statement  any  hackman,  or  bus- 
man, having  the  exclusive  privilege  of  entering  said  inclosure 
and  soliciting  passengers  there,  would,  to  that  extent,  have  an 
advantage  over  hackmen  or  busmen  excluded  therefrom,  so  far 
as  concerned  incoming  passengers. 

The  agreed  statement  of  facts  distinctly  states  the  question 
to  be  decided  by  us,  and  to  that  we  must  confine  ourselves.  Says 
the  agreed  statement :  "It  is  contended  that  the  said  company 
had  the  right  to  make  the  said  contract,  and  thus  exclude  the 
defendant  and  others  than  the  said  Peine  from  the  said  inelos- 
iire,  and  to  grant  to  the  said  Peine  the  exclusive  right  to  enter 
the  said  inclosure  for  the  puqiose  of  there  soliciting  passengers 
for  his  hack  line.  Defendant  controverts  this  position,  in  so  far 
as  it  is  claimed  that  the  said  company  can  grant  the  exclusive 
right  to  any  particular  person  to  enter  the  said  inclosure  with 
his  hack  and  there  solicit  passengers,  and  contends  that  the  rail- 
way company  must  exclude  all,  or  admit  all  into  the  said  in- 
closure, so  long  as  they  conduct  themselves  in  an  orderly  and 
peacable  manner." 

The  single  issue  is  thus  sharply  defined,  viz :  Has  a  railway 
the  right  to  confer  upon  one  hackman  the  exclusive  privilege  of 
entering  with  his  hacks  its  inclosed  station-house  grounds,  and 
of  soliciting  incoming  passengers,  and  to  exclude  all  others  from 
the  inclosure,  such  privilege  conferring  advantages  upon  the 
favored  hackman  and  discriminating  against  all  other  hackmen 
by  forbidding  them  to  enter  the  inclosure  to  solicit  passengers, 
and  by  placing  the  hacks  of  those  excluded  one  hundred  and 


m 

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AMERICAN  CRIMINAL  REPORTS. 


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fifty  feet  from  the  depot,  and  in  an  open  street  ?  The  (|uostion 
has  never  before  been  presented  in  our  reports,  but  it  is  by  no 
means  a  new  one,  and  has  been  passed  upon  in  other  jurisdic- 
tions. 

Quite  independently  of  constitutional  or  statutory  provisions, 
it  seems  to  be  the  prevailing  doctrine  in  the  United  States  that 
a  railroad  company  may  make  any  necessary  and  reasonable 
rules  for  the  govenunent  of  persons  using  its  depots  and 
grounds;  yet  it  cannot  arbitrarily,  for  its  own  pleasure  or  profit, 
admit  to  its  platforms,  or  dep<jt  grounds,  one  carrier  of  pas- 
sengers or  merchandise,  and,  at  the  same  time,  exclude  all 
others. 

The  question  is  one  that  affects  not  only  the  excluded  hack- 
man:  it  affects  the  interest  of  the  public.  The  upholding  of  the 
grant  of  this  exclusive  privilege  would  prevent  competition  be- 
tween rival  carriers  of  passengers,  create  a  monopoly  in  the 
privileged  hackmen,  and  might  produce  inconvenience  and  loss 
to  persons  traveling  over  the  railroad,  or  those  having  freights 
transpoited  over  it,  in  case  of  exclusion  of  drays  and  wagons 
from  its  grounds  other  than  those  owned  by  the  person  having 
the  exclusive  right  to  enter  the  railroad's  depot  grounds.  To 
concede  the  right  claimed  in  the  present  case  would  be,  in  effect, 
to  confer  upon  the  railway  company  the  control  of  the  transpor- 
tation of  passengers  beyond  its  own  lines,  and,  in  the  end,  to 
create  a  monopoly  of  such  business,  not  granted  by  its  charter, 
and  against  the  interests  of  the  public.  These  are  the  views  ably 
urged  in  Kalamazoo  Hack  Co.  v.  Sooisma,  84  Mich.  194 ;  Mon- 
tana  Union  By.  Co.  v.  Manglois,  9  Mont.  419 ;  Cravens  ct  al. 
r.  Rodgers,  101  Mo.  247,  and  McConnell  v.  Pedigo,  92  Ky.  465. 
These  are  the  views  held,  too,  by  the  three  dissenting  judges  in 
the  ease  of  Old  Colony  R.  Co.  v.  Tnpp,  147  Mass.  35-41.  The 
majority  of  the  judges  in  that  case  held  that  a  railroad  might 
grant  to  one  an  exclusive  right  to  solicit  the  patronage  of  incom- 
ing passengers,  but  this  is  the  only  American  case  making  that 
distinct  holding,  and  that  opinion  was  delivered  by  four  judges, 
the  other  three  members  of  the  court  vigorously  dissenting,  and 
with  better  show  of  reasoning,  in  our  judgment.  The  case  of 
Barney  v.  Oyster  Bay  &  Huntington  Steamboat  Co.,  67  N.  Y. 
31 ;  Fluher  v.  Georgia  Railroad  &  Banking  Co.,  81  Ga.  461,  and 


STATE  V.  SNOVEa 


055 


""ho  qnostion 
;  it  is  1)V  no 
lor  jurisdic- 

r  provisions, 
I  States  that 
I  reasonable 
depots  and 
ire  or  profit, 
•rior  of  pas- 
exclude  all 

eluded  hack- 
jlding  of  the 
npetition  be- 
)poly  in  the 
nee  and  loss 
ang  freights 

and  wagons 
arson  having 
[rounds.  To 
be,  in  effect, 
the  transpor- 
i  the  end,  to 
\^  it8  charter, 
le  views  ably 
1.  194;  Mon- 
ravens  et  al. 
,  92  Ky.  465. 
ng  judges  in 
35-41.  The 
lilroad  might 
age  of  inconi- 

making  that 

four  judges, 
ssenting,  and 

The  case  of 
lo.,  67  N.  Y. 

Ga.  461,  and 


Cole  V.  r.nwen,  88  :^ri('h.  210,  do  not  present  the  precise  point 
involved  in  .'1?e  case  before  us.  They  are  all  decisions  of  otli(.r 
questions  and  can  be  readily  distinguished  from  tiio  case  in 
hand. 

Counsel  for  appellant  thinks  that  in  Cuh  v.  Rowcn,  88  Wn-h. 
219,  the  Supreme  Court  of  :Michigan  has  swung  away  from  the 
doctrine  announced  in  the  earlier  case  of  Kalamazoo  Hark  Vo. 
V.  Sootsma,  84  Mich.  194.  E)it  that  very  able  court  did  not  so 
think,  and  was  careful  to  disabuse  the  mind  of  counsel,  who 
seems  to  have  the  notion  which  counsel  here  puts  forward,  and 
the  court  clearly  distingiiished  the  two  cases. 

We  are  of  opinion  that  the  railway  had  no  right  to  exclude 
Keed,  the  appellee,  from  its  depot  and  inclosed  grounds,  on  the 
facts  appearing  in  the  agreed  statement  on  which  the  case  is 
submitted  to  us,  and  hence  that  the  action  of  the  court  below  in 
discharging  Joseph  Reed  was  correct. 

Affirmed. 


State  v.  Snover. 

63  N.  J.  Law,  382—43  Atl.  Rep.  1059. 

Decided  June  12,  1S99. 

Rape:    "Social  honesty" — Baptismal  certificates  not  evidence. 

1.  Upon  the  trial  of  an  indictment  for  liaving  carnal  intercourse  with 

a  woman  under  the  age  of  consent,  the  defendant  offered  to  prove 
"his  reputation  for  morality,  virtue,  and  honesty  in  living," 
which  was  overruled  as  being  immaterial.    Held  to  be  error. 

2.  "Honesty,"  in  the  above  context,  means  chastity  or  sexual  pro- 

priety. 

3.  The  age  of  the  prosecuting  witness  being  in  issue,  it  was  error  to 

admit  a  baptismal  certificate  in  which  the  age  of  birth  was  cer- 
tified. 

(Syllabus  by  the  Court.) 

Error  to  the  Warren  Quarter  Sessions.    Before  Maoie,  Chief 
Justice,  and  Justices  Gaeuison,  Lippincott  and  Collins. 

George  A.  Angle,  prosecutor  for  the  State. 
William  H.  Morrow,  for  the  defendant. 


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656 


AMERICAN  CRIMINAL  REPORTa 


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Qarrisox,  J.  Upon  the  trinl  of  nii  iiidictinont  for  having 
carnal  knowledge  of  a  woman  under  the  age  of  consent,  the  de- 
fendant offered  to  prove  liia  reputation  by  the  following  ques- 
tion put  to  a  witness  who  lived  in  his  neighborhood :  "Do  you 
know  what  is  his  [defendant's]  reputation  for  morality,  virtue, 
and  honesty  in  living  i"  To  this  question  the  prosecutor  ob- 
jected, stating  as  his  sole  ground  that  "it  makes  no  difference." 
The  objection  thus  made  was  sustained,  and  a  bill  of  exceptions 
sealed,  upon  which  error  is  now  assigned. 

Evidence  of  the  defendant's  general  reputation  was,  of  course, 
admis.-<ible.    Baker  v.  State,  24  Vroom,  45,  20  Atl.  Rep.  858. 

If  his  general  reputation  were  admissible  upon  a  specific  in- 
dictment, his  specific  reputation  with  respect  thereto  was  rele- 
vant. Dally  V.  O'^ersecrs  of  Woodhridge,  1  Zab.  491;  Hawkins 
V.  State,  id.  630.  But  his  specific  reputation  in  other  respects 
was  irrelevant. 

The  contention  of  the  State  was  that  the  question  put  to  the 
defendant's  witness  went  outside  of  the  issue,  in  that  it  called 
for  his  reputation  for  "honesty  in  living,"  which,  it  was  argued, 
referred  only  to  financial  probity,  hence  was  not  germane  to  an 
issue  that  turned  upon  sexual  laxity. 

This  distinction,  which  is  not  suggested  by  the  objection,  is 
not  well  founded  in  fact.  The  word  "honesty,"  from  the  Latin 
"honcstus,"  is  essentially  a  word  that  takes  its  meaning  from  its 
context.  Primarily  it  means  "suitable,"  "becoming,"  or  "do- 
cent," — meanings  that  obviously  lend  themselves  to  divers  con- 
texts. In  moneyed  transactions  it  means  financial  integrity; 
in  affairs  of  State  it  means  loyalty ;  in  matters  of  friendship  it 
means  steadfastness ;  and  so  on.  In  sexual  relations  it  imports 
chastity.    This  is  an  accepted  signification. 

In  Webster's  International  Dictionary  it  is  said  to  mean 
"chastity,  modesty." 

As  early  as  1385  Chaucer  so  used  it,  saying: 

"Why  lyked  me  thy  yellow  heer  to  see, 
More  than  the  bounds  of  myn  hon«)Stie?" 


In  1621,  Burton,  in  the  "Anatomy  of  Melancholy,"  wrote: 
"It  wap  commonly  practiced  in  Diana's  Temple  for  women  ta 
go  bsrofoot  over  hot  coals  to  try  theix  honesties." 


for  having 
ont,  tho  dc- 
3wing  ques- 
l:  "Do  you 
lity,  virtuo, 
isccutor  ol)- 
difforcnce." 
i  exceptions 

8,  of  course, 
Rep.  858. 
specific  in- 
to was  rele- 
1 ;  Hawkins 
her  resiiects 

1  put  to  tho 
lat  it  called 
was  argued, 
rmane  to  an 

objection,  is 
m  the  Latin 
ing  from  its 


ig,"  or 


'de- 


divers  con- 
1  integrity; 
riendship  it 
,3  it  imports 

id  to  mean 


oly,"  wrote: 
)r  women  ta 


HAIR8T0N  V.  COMMONWKALTII. 


657 


Shakespeare  constantly  so  used  it;  notnhly  in  the  plmisc: 
"Wives  may  be  merry,  and  yet  honest  to.j."  ^^rerrv  Wive- 
IV.,  2.  ^ 

In  ICOl,  Pepys,  in  the  Dinry  of  Augnnt  11,  gives  it  in  this 
sense. 

In  1711,  Steele,  in  the  ''Spectator,"  Xo.  118,  parflgrai)]i  2, 
says:  "The  maid  is  honest  and  the  nuin  dares  not  be  otherwise." 

In  Fletcher  and  Kowley's  ".Maid  of  the  .Mill"  it  is  said :  "Jlor 
honesty  was  all  her  dower." 

In  1749,  Fielding,  in  "Tom  Jones,"  XV.,  VI IF.,  writes: 
"Miss  Xancy  was,  in  vulgar  language,  soon  made  an  honest 
woman." 

And  Scott  in  "St.  Ronan's  Well,"  chapter  25,  gives  it  a  like 
meaning. 

The  only  conclusion  from  these  eitationfi  is  that  common  usiijio 
has  given  to  the  word  "honesty"  the  meaning  of  sexual  pro- 
priety when  the  context  so  requires.  In  the  question  put  to  the 
witness  tho  expression  "honesty  in  living"  was  directly  conp]c(l 
with  "morality  and  virtue."  Clearly,  it  had  no  alien  meaning, 
and  the  question  as  a  whole  was  proper.  The  contrary  ruling 
dejjrived  the  defendant  of  a  substantial  element  of  his  defense. 

Another  matter  controverted  upon  the  trial  was  the  age  of  the 
prosecuting  witness.  Upon  this  issue  the  trial  coiirt  admitted, 
over  the  defendant's  objection,  a  written  certiticate  of  baptism, 
in  which  the  clergyman  had  given  the  date  of  birth.  This  was 
illegal  evidence.  It  is  true  that  the  mother  testified  that  her 
daughter  was  under  the  age  of  sixteen,  but  the  jury  saw  tho 
prosecuting  witness,  and  upon  the  question  of  her  age  it  may  be 
that  the  clergyman's  certificate  had  weight  with  them. 

For  these  errors  the  judgment  must  be  reversed. 


HaTRSTOX    v.    C0M:\t0NWKALTir. 

97  Va.  754—32  S.  E.  Rep.  797. 
Decided  March  23,  1899. 
Attempt  to  Rape:    Verdict — Force — Insufficient  evidence. 
1.  A  verdict,  "We    .    .    .    find  the  prisoner  guilty  of  attempted  rape 
and  fix  bis  punishment  at  eight  years  in  the  penitentiary,"  is  suf- 
ficiently certain. 

VouXI  — 43 


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658 


AMERICAN  CRIMINAL  REPORTS. 


2.  Where  there  is  no  attempt  to  use  force,  no  threat,  no  violence,  and 
no  evidence  of  an  intention  to  use  force,  if  necessary,  to  over- 
come the  will  of  the  prosecutrix,  but  only  solicitation,  a  verdict 
of  guilty  will  be  set  aside,  and  a  new  trial  granted. 

Plaintiff  in  error  Ilairston,  convicted  of  attempted  rape  in 
the  County  Court  of  Henry  county,  brings  error.    Eeversed. 

William  M.  Peyton,  for  the  plaintiff  iii  error. 

A.  J.  Montague,  Atty.  Gen.,  for  the  Commonwealth. 

RiELY,  J.  The  first  assigimiont  of  error  is  that  the  verdict 
of  the  jury  is  defective  for  uncertainty. 

The  indictment  contains  a  single  count,  and  charges  the  ac- 
cused with  an  attempt  to  commit  rape  upon  a  certain  female. 
The  verdict  of  the  jurj'  is  in  those  words :  "We,  the  jury,  find 
the  prisoner  guilty  of  attempted  rape,  and  fix  his  punishment  at 
eight  years  in  the  penitentiary." 

The  verdict  of  a  jury  in  a  criminal  case  is  always  to  be  read 
in  connection  with  the  indictment;  and  if,  upon  reading  them 
together,  the  meaning  of  the  verdict  is  certain,  this  is  sufficient. 
Uohach's  Case,  28  Gratt.  922.  The  indictment  in  this  case 
charges  the  prisoner  with  an  attempt  to  co.nmit  rape,  and  names 
the  female  upon  whom  the  attempt  was  made.  The  verdict  is 
a  direct  response  to  the  issue  of  guilty  or  not  guilty,  which  the 
jury  were  sworn  to  try.  It  finds  the  prisoner  guilty  of  at- 
tempted rape,  and  ascertains  his  punishment.  It  was  not  neces- 
sary to  insert  his  name  in  the  verdict.  The  verdict,  by  the  use 
of  the  word  "prisoner,"  identifies  the  person  named  in  the  in- 
dictment, in  custody,  and  on  trial,  as  the  person  guilty  of  the 
offense,  and  finds  him  guilty  of  attempted  rape ;  that  is,  of  the 
attempt  to  commit  rape,  with  wliich  he  is  charged  in  the  indict- 
ment.   This  is  plainly  the  meaning  of  the  verdict. 

The  only  other  assignment  of  error  is  the  refusal  of  the  court 
to  grant  the  accused  a  new  trial.  The  insufficiency  of  the  evi- 
dence to  warrant  the  verdict  was  the  ground  of  the  motion  for  a 
new  trial. 

The  court  is  of  opinion  that  this  error  is  well  assigned.  To 
sustain  the  charge  of  an  attempt  to  commit  rape,  there  must  be 
evidence  of  force,  or  of  an  intention  on  the  part  of  the  offender 


iolence,  and 
ry,  to  over- 
n,  a  verdict 


ed  rape  in 
jversed. 


h. 

the  verdict 

•ges  the  ac- 
ain  female. 
3  jury,  find 
[lishinent  at 

i  to  be  read 
ading  them 
is  sufficient, 
n  this  case 
,  and  names 
e  verdict  is 
',  which  the 
iiihy  of  at- 
is  not  neces- 
,  by  the  use 
1  in  the  in- 
uilty  of  the 
at  is,  of  tlie 
the  indict- 

of  the  court 
of  the  evi- 
notion  for  a 


HAIRSTON  V.  COMMONWEALTH. 


659 


signed. 


To 

ere  must  be 
the  offender 


to  use  force  in  the  perpetration  of  the  heinous  offense,  if  it 
should  become  necessary  to  overcome  the  will  of  his  victim. 
1  Bish.  Cr.  Law  (2d  ed.),  §  731;  3  Am.  &  Eng.  Ency.  \n\\' 
(2d  ed.)  258;  Commonweallli  v.  Fields,  4  Leigh,  648;  State  v. 
Massey,  86  ]SL  C.  658;  and  State  v.  Kendall  [73  Iowa,  255], 
5  Am.  St.  Rep.  679. 

The  evidence  of  the  prosecutrix  is  that  the  accused  camo  to 
her  father's  house,  riding  upon  a  mule,  and  commenced  talking 
to  her,  as  she  stood  in  the  edge  of  the  yard,  about  paying  him 
for  some  work  he  had  done,  and  followed  it  up  by  making  to 
ler  an  indecent  proposal.  lie  then  got  down  off  his  mule,  and 
started  towards  hex*,  renewing  his  indecent  request^  and  making 
a  motion  at  her  and  very  close  to  her  as  if  he  would  pull  up  her 
dress,  but  did  not  touch  her.  She  jumped  to  one  side,  and 
dodged  him,  screamed,  picked  up  a  stone,  and  threw  it  at  him ; 
that  he  advanced  on  her  after  she  threw  the  stone;  and  that 
she  then  threw  three  more  stones  at  ^nm,  when  he  turned  awav, 
got  on  his  mule,  and  left. 

The  occurrence  took  place  between  twelve  and  one  o'clock  in 
the  day,  in  the  edge  of  the  yard  of  the  father  of  the  prosecutrix, 
about  fifty  yards  from  the  house,  and  in  sight  of,  and  very  near, 
the  house  of  a  coloi*ed  family.  No  one  witnessed  the  occurrence 
or  heard  the  screams.  The  father  and  mother  of  the  prosecutrix 
were  in  the  house,  sick  in  bed,  and  her  sister  was  in  the  back 
room,  washing  dishes,  with  the  front  door  shut. 

The  whole  evidence,  taken  together,  is  of  a  very  doubtfid  and 
inconclusive  character.  There  was  no  attempt  to  use  force,  no 
threat,  only  solicitation.  The  absence  of  all  violence,  and  of 
evidence  of  any  intention  to  use  force,  if  necessary  to  overcome 
the  will  of  the  prosecutrix ;  the  time  and  the  place,  and  all  the 
surrounding  circumstances,  invest  the  charge  with  very  great 
improbability.  However  reprehensible  is  the  conduct  of  the  ac- 
cused, the  evidence  is  consistent  with  a  desire  on  his  part  to 
have  sexual  intercourse  with  the  prosecutrix,  but  without  evi- 
dence of  an  intention  to  use  force,  if  necessary,  to  gi'atify  his 
desire, — only  persuasion.  "The  guilt  of  a  party  is  not  to  be 
inferred  because  the  facts  are  consistent  with  his  guilt,  but  they 
must  be  inconsistent  with  his  innocence." 


rij 


660 


AMERICAN  CRIMINAL  REPORTS. 


The  court  is  of  opinion  that  the  county  court  erred  in  refusing 
to  grant  the  plaintiff  in  error  a  new  trial,  for  which  error  its 
judgment  must  be  reversed,  the  verdict  of  the  jury  set  aside, 
and  a  new  trial  awarded. 


Bailey  v.  State. 

57  Neb.  706—78  N.  W.  Rep.  284. 

Decided  February  9,  1899. 

Rape:  "Previously  unchaste"  female  —  Jurisdiction — Information — No 
estoppel  against  a  criminal  defendant — A  conviction  must  be  sup- 
ported by  the  "letter"  of  the  law. 

1.  A  woman  not  "previously  unchaste,"  within  the  meaning  of  sec- 

tion 12  of  chapter  4  of  the  Criminal  Code,  is  one  who  has  never 
had  unlawful  sexual  intercourse  with  a  male  prior  to  the  inter- 
course with  which  the  prisoner  stands  indicted. 

2.  The  object  of  the  statute  is  to  protect  the  virtuous  maidens  of  the 

Commonwealth — to  protect  those  girls  who  are  undeflled  virgins; 
and  a  female,  under  eighteen  years  of  age  and  over  fifteen  years 
of  age,  who  had  been  guilty  of  unlawful  sexual  intercourse  with  a 
male,  is  not  within  the  law. 

3.  The  gist  of  the  crime  denounced  by  this  statute  is  the  defilement 

of  a  virgin,  with  her  consent,  over  fifteen  and  under  eighteen 
years  of  age,  by  a  man  over  eighteen  years  of  age. 

4.  The  prisoner  was  indicted  for  rape,  under  the  statute,  for  having. 

in  Nebraska,  had  sexual  intercourse,  with  her  consent,  with  a 
girl  over  fifteen  and  under  eighteen  years  of  age,  and  not  "pre- 
viously unchaste."  The  evidence  showed  that  the  female,  after 
she  was  fifteen  years  of  age,  and  before  her  sexual  intercourse 
with  the  prisoner  in  Nebraslia,  had  had  illicit  sexual  intercourse 
for  the  first  time  with  him  in  the  State  of  Iowa,  and  that  she  had . 
sustained  such  relations  with  no  other  man  than  the  prisoner. 
Held,  that  the  evidence  would  not  sustain  a  conviction. 

5.  In  such  an  indictment  may  be  included  all  acts  of  unlawful  sexual 

intercourse  which  occurred  between  the  prisoner  and  the  prose- 
cutrix in  the  State  of  Nebraska  after  the  female  became  fifteen 
years  of  age,  and  which  were  not  barred  by  the  statute  of  limita- 
tions. 

6.  The  State,  in  a  criminal  prosecution,  may  not  invoke  against  the 

prisoner  the  doctrine  of  estoppel. 

7.  To  sustain  a  criminal  conviction,  it  is  not  enoush  for  the  State  to 

show  that  the  prisoner   indicted  has  violated  the  spirit  of  the 
statute,  but  the  evidence  must  show  beyond  a  reasonable  doubt 
that  he  has  offended  against  the  very  letter  of  the  law. 
(Syllabus  by  the  Court.) 


in  refusing 
h  error  its 
'  set  aside, 


BAILEY  V.  STATE. 


661 


•matlon — "No 
nust  he  sup- 

alng  of  sec- 
,0  has  never 
;o  the  inter- 

idens  of  the 
lied  virgins; 
fifteen  years 
jurse  with  a 

e  defilement 
ler  eighteen 

for  having, 
lent,  with  a 
id  not  "pre- 
emale,  after 
intercourse 
intercourse 
that  she  had . 
he  prisoner, 
n. 

iwful  sexual 
d  the  prose- 
came  fifteen 
te  of  limita- 

against  the 

the  State  to 
pirlt  of  the 
inable  doubt 
w. 


Error  to  the  Douglas  County  District  Court;  Slabaugh, 
Judge. 

George  C.  Bailey,  convicted  of  rape,  brings  error.    Reversed. 

McFarland  cC  Altschider,  for  the  plaintiff  in  error. 
C.  J.  Smyth,  Atty.  Gen.,  and  W.  D.  Oldham,  Dopt.  Atty. 
Gen.,  for  the  State. 

Ragax,  C.  Section  12  of  chapter  4  of  the  Criminal  Code  of 
this  State,  among  other  things,  provides :  "If  any  male  person 
of  the  age  of  eighteen  years  or  upwards  shall  canially  know  or 
abuse  any  female  child  under  the  age  of  eighteen  with  her  con- 
sent, unless  such  female  child  so  known  and  abused  is  over  fif- 
'teen  years  of  age  and  previously  unchaste,  every  such  person  so 
offending  shall  be  deemed  guilty  of  a  rape."  George  C.  I'ailcy 
was  indicted  in  the  district  court  of  Douglas  county,  under  the 
statute  just  quoted,  for  having  on  June  13,  1898,  had  sexual 
intercourse  with  one  Clara  Blue  with  her  consent;  she  then  and 
there  being  a  female  of  the  age  of  sixteen  years,  and  not  pre- 
viously unchaste.  Bailey  was  convicted  and  sentenced  to  the 
penitentiary,  and  brings  that  judgnnent  here  for  review  on  error. 
Of  the  numerous  assignments  of  error  argued  in  the  brief,  it 
would  subserve  no  useful  purpose  to  notice  but  two. 

1.  The  evidence  in  the  bill  of  exceptions  shows  without  con- 
tradiction that  in  June,  189S,  Clara  Blue  was  between  sixtoen 
and  seventeen  years  of  age;  that  no  man  had  e\er  had  sexual  in- 
tercourse with  her,  except  the  prisoner;  tliat  in  !March  of  that 
year  she  lived  in  the  State  of  Iowa;  that  the  prisoner  formed 
her  acquaintance  at  an  hotel  in  Pacific  Junction,  in  that  State, 
in  the  month  of  ]\[arch,  1898  ;  that  with  her  consent  he  then  had 
sexual  intercourse  with  her  in  Iowa ;  that  subsequently,  in  dune 
of  said  year,  she  came  to  the  city  of  Omaha,  in  this  State,  and 
on  the  13th  of  said  month,  and  at  divers  other  times  l)ef(U'e  and 
after  that  date,  he  again  had  sexual  intercourse  witli  her  in  this 
State,  she  consenting  thereto.  As  to  the  meaning  of  the  phrase 
"previously  unchaste,"  found  in  the  statute  just  quoted,  the 
district  court  instructed  the  jury  as  follows:  "By  tlie  phrase 
'unchaste,'  as  used  in  the  law  defining  rape,  is  meant  lewd ;  hav- 
ing an  indulgence  of  lust;  :.nd,  as  applied  to  a  female  child 


662 


AMERICAN  CRIMINAL  REPORTS. 


I: 


I  I, 


previously  unchaste,  means  that  she  was  previously  before  the 
act  complained  of  lewd,  or  had  an  indulgence  for  lust."  The ' 
prisoner  took  an  exception  to  the  giving  of  this  instruction.  We 
do  not  approve  of  the  construction  placed  upon  the  phrase  in 
the  statute,  as  embodied  in  this  instniction.  The  definition  of  an 
unchaste  woman,  within  the  meaning  of  the  statute,  is  by  the 
district  court  given  as  a  lewd  woman, — a  woman  possessing  an 
indulgence  for  lust;  or,  as  we  undex'stand  the  court's  definition, 
a  woman,  to  be  unchaste,  within  the  meaning  of  this  statute, 
must  be  a  woman  of  notoriously  lewd  and  lascivious  habits ;  in 
the  ordinary  language  of  the  day,  she  must  be  a  "prostitute." 
We  do  not  think  this  is  the  meaning  of  the  statute.  A  woman 
not  "previously  unchaste,"  within  the  meaning  of  the  statute,  is 
one  who  has  never  had  unlawful  sexual  intercourse  with  a  male 
prior  to  the  act  of  intercourse  for  which  the  prisoner  stands  in- 
dicted. The  object  of  the  statute  quoted  was  to  protect  the  vir- 
tuous maidens  of  the  Commonwealth, — in  other  words,  to  pro- 
tect those  girls  who  were  undefiled  virgins ;  and  a  female,  inuler 
eigliteen  years  of  age  and  over  fifteen  years  of  age,  who  has 
been  guilty  of  unlawful  sexual  intercourse  Avith  a  male,  is  not 
within  the  act. 

2.  But  the  evidence  in  this  record  does  not  sustain  the  ver- 
dict on  which  the  judgment  rests.  The  material  allegations  of 
the  indictment  are  that  the  prisoner  was  a  man  over  eightocn 
years  of  age ;  that  in  Douglas  county,  Nebraska,  with  her  con- 
sent, he  had  sexual  intercourse  with  Clara  Blue;  that  she  was 
then  and  there  sixteen  years  of  age,  and  not  "previously  un- 
chaste." The  latter  averment  was  not  only  not  proved  by  the 
State,  but  the  undisputed  evidence  shows  that  Clara  Blue,  prior 
to  the  date  of  her  intercourse  with  the  prisoner  in  Nebraska, 
Avas  unchaste.  The  fact  that  she  was  first  deprived  of  her  vir- 
ginity by  the  prisoner  does  not  strengthen  the  State's  case.  That 
first  illicit  sexual  act  of  the  female  and  prisoner  occurred  in 
the  State  of  Iowa.  Had  the  first  defilement  of  the  girl  by  the 
prisoner  occurred  in  Nebraska,  instead  of  Iowa,  on  the  date  it 
did,  and  which  was  prior  to  the  one  charged  in  the  indictment, 
then  the  first  defilement  would  be  no  defense  to  the  prisoner  on 
an  indictment  for  the  second,  since  both  woiild  have  been  within 
the  statute  of  limitations,  and  each  intercourse  a  part  of  the 


BAILEY  V.  STATE. 


663 


before  the 
ist."  The  ■ 
ction.  We 
phrase  in 
ition  of  an 
is  by  the 
sessing  an 
definition, 
is  statute, 
habits;  in 
rostitute." 
A  woman 
statute,  is 
ith  a  male 
stands  in- 
ct  the  V ir- 
is, to  pro- 
ale,  under 
,  who  has 
lie,  is  not 

II  the  vor- 
[••ations  of 
•  eighteen 
1  her  con- 
t  she  was 
o'.isly  lin- 
ed bv  the 
lue,  prior 
N^ebraska, 
f  her  vir- 
ise.  That 
cur red  in 
irl  by  the 
lie  date  it 
dictinent, 
•isoner  on 
en  within 
rt  of  the 


crime  charged  in  the  indictment.  But  to  sustain  this  convic- 
tion on  this  evidence  is  to  punish  the  prisoner  here  for  the  crime 
committed  in  another  jurisdiction.  The  statute  is  a  harsh  one, 
and  the  penalties  for  its  violation  severe.  To  sustain  a  convic- 
tion under  it,  the  evidence  must  show  beyond  a  reasonable 
doubt,  among  other  things,  that  the  female  with  whom  the  sex- 
ual intercourse  was  had  was,  prior  to  that  intercourse,  sexually 
pure, — chaste  as  Diana.  To  show  that  she  was  chaste  prior  to  tlio 
sexual  act  in  Nebraska,  but  for  her  previous  seduction  ])y  the 
prisoner  in  another  State,  does  not  satisfy  the  statute.  Suppose 
the  statute  of  limitations  for  this  crime  was  one  year,  instead  of 
three ;  suppose  the  prisoner,  in  Nebraska,  deprived  this  girl  of 
her  virginity  when  she  was  sixteen,  and  she  did  not  again  car- 
nally know  any  man  until  she  was  seventeen  and  a  half,  and 
then,  with  her  consent,  sexual  intercourse  occurred  between  her- 
self and  the  prisoner,  and  he  is  indicted  therefur.  Is  it  not  clear 
that  the  intercourse  which  occurred  when  she  Avas  sixteen  would, 
if  established,  afford  the  prisoner  a  complete  defense  ?  It  woubl, 
because  after  the  second  sexual  act  she  was  not  chaste.  The  first 
illicit  intercourse  would  not  be  included  in,  and  a  part  of,  the 
crime  charged  in  the  indictment.  That  act  would  be  barred 
by  the  statute  of  limitations.  The  statute  does  not  punish  men 
for  unlawful  sexual  relations  Avith  a  prostitute  over  fifteen  years 
of  nge,  nor  for  such  relations  with  a  female  Avho,  though  not 
a  prostitute,  has  already  submitted  herself  to  the  illicit  em- 
braces of  a  male,  capable  of  perf(U'niing  the  copulative  act. 

■  3.  But  it  is  said  by  counsel  for  the  State  that  to  allow  the 
prisoner  to  urge  as  a  defense  here  the  intercourse  which  took 
place  between  himself  and  the  prosecutrix  in  the  State  of  Iowa 
would  be  permitting  the  accused  to  take  advantage  of  his  own 
wrong.  This  is  simjdy  saying  that  the  accused  is  estopped  from 
asserting  the  truth  of  his  unlawful  conduct  in  another  jurisdic- 
tion because  that  conduct  would  establish  innocence  of  the  crime 
which  he  is  charged  with  having  committed  in  this  State.  B',(t 
the  State,  in  criminal  prosecutions,  may  not  invoke  against  the 
prisoner  the  doctrine  of  estop^iel.  Moore  v.  Slate,  5^  Xeb.  831. 
To  sustain  a  criminal  conviction,  it  is  not  enough  fm-  the  State 
to  show  that  the  prisoner  indicted  has  violated  the  spirit  of  the 
statute,  but  the  evidence  must  show  beyond  a  reasonable  doubt 


664 


AMERICAN  CRIMINAL  REPORTS. 


h    >; 


that  ho  has  offonded  against  the  very  letter  of  the  law.  Moore 
r.  State,  53  Neb.  881 ;  Crim.  Code,  §  2.51.  Here  the  prisoner 
is  charged  with  having  had  in  this  State  sexual  intercourse, 
with  her  consent,  with  a  girl  sixteen  years  of  age,  she  being  prior 
thereto  chaste.  At  the  time  the  intercourse  occurred  in  tliis 
State  the  female  was  not  chaste.  Prior  to  the  prisoner's  inter- 
course with  her  in  Iowa,  so  far  as  this  record  shows,  she  was 
chaste;  and  in  Iowa — for  we  must  presume  the  laws  of  that 
State  to  bo  the  same  as  ours — he  robbed  her  of  her  virginity, 
and  committed  the  crime  for  which  he  is  convicted  here. 
The  judgment  of  the  district  court  is  reversed. 

Note. — Husband  as  an  accomplice  in  raping  his  wife. — See  State  v. 
Haines,  51  La.  Ann.  751,  25  So.  Rep.  372  (1899).  For  lack  of  space  we 
cannot  give  this  case  in  full,  but  give  the  following  selection  from  the 
syllabus  by  the  court,  stating  questions  involved: 

1.  The  husband  of  a  woman  cannot  himself  be  guilty  of  an  actual 

rape  upon  his  wife,  on  account  of  the  matrimonial  consent  which 
she  has  given,  and  which  she  cannot  retract. 

2.  To  hold  a  husband  charged  with  rape  upon  a  woman  who  is  his 

wife,  or  to  convict  him,  it  must  appear  that  the  carnal  knowledge 
of  the  woman  constituting  the  rape  was  accomplished  through  a 
man  other  than  the  husband,  and  that  the  husband  procured  it 
to  be  done,  or  assisted  the  other  in  the  execution  of  their  com- 
mon purpose. 

3.  But  where  the  "other  man"  in  the  case,  demanding  a  severance,  is 

tried  first,  and  acquitted,  the  prosecution  against  the  husband 
falls,  since  he  cannot  be  guilty  of  raping  his  own  wife. 


Howard  v.  State. 

121  Ala.  21—25  So.  Rep.  1000. 

Decided  May  18,  1899. 

ftEsi.STiNG   Arrest:    Indictment — Void  warrant. 

1.  An  Indictment  for  resisting  arrest,  to  comply  with  the  Alabama 

Code,  need  not  state  the  date  of  the  resistance,  nor  for  whose  ar- 
rest the  warrant  was  issued. 

2.  A  warrant  which,  as  a  cause  for  arrest,  recites,  "Complaint  on  oath 

having  been  made  before  me  that  the  offense  of  threatening 
breach  of  the  peace  has  been  committed,"  does  not  state  a  crime, 
is  not  a  sufficient  peace  warrant,  and  is  void. 

3.  It  is  not  a  crime  to  resist  one  who  endeavors  to  make  an  arrest 

under  a  void  warrant. 


law.  Moore 
the  prisoner 
intercourse, 
e  being  prior 
irred  in  tliis 
soner's  inter- 
nvs,  she  was 
laws  of  that 
er  virginity, 
lore. 


—See  State  v. 
k  of  space  we    ^ 
tion  from  the 

of  an  actual 
consent  which 

in  who  is  his 
lal  knowledge 
led  through  a 
d  procured  it 
of  their  corn- 
severance,  is 
the  husband 
Ife. 


t. 

the  Alabama 
for  whose  ar- 

laint  on  oath 

threatening 

itate  a  crime, 

ike  an  arrest 


HOWARD  V,  STATE. 


Gi^.5 


•ntgoinory, 


Jack  Howard,  convicted  in  the  City  Court  of  ^Sh 
Hon.  A.  D.  Sayre,  Judge,  of  resisting  an  officer  who'^vns  at- 
tempting to  serve  a  warrant  or  writ  of  arrest,  issued  by  a  jus- 
tice of  the  peace,  ajipeals.    Ilevcrsed. 

Hill  (&  Hill,  for  the  appelLnnt. 

Chas.  G.  Brown,  Attorney-General,  for  the  State. 

Tysox,  J.  The  indictment  contained  three  counts.  Two  of 
them  were  framed  under  section  5403  of  the  Code,  and  the 
other  under  section  uJGG.  Each  count  was  demurred  to.  The 
assignments  of  the  demurrer  raised  the  question  tliat  the  war- 
rant or  writ  of  arrest  was  not  sufficiently  described.  The  con- 
tention was  insisted  upon  that  the  indictment  should  have 
averred  the  offense  mentioned  in  the  warrant  or  writ  of  arrest, 
its  date  of  issuance,  and  the  name  of  the  person  for  wlioux  is- 
sued. .« 

Xo  such  particularity  is  proscribed  by  the  form  for  the  in- 
dictment under  section  54G3.  In  fact,  it  is  there  expressly 
declared  that  describing  the  process  generally  is  sufficient. 
Fonn  73,  p.  334,  Code. 

Xo  form  is  found  for  indictments  under  section  54GG.  The 
count  in  the  indictment  under  consideration  follows  the  lan- 
guage of  this  section,  and  no  more  particularity  in  the  descrip- 
tion of  the  warrant  or  writ  of  arrest  is  required  in  an  indict- 
ment under  this  section  than  is  required  under  section  54G3. 
There  Avas  no  error  in  overniling  the  demurrer. 

The  warrant  or  writ  of  arrest  introduced  in  evidence  against 
the  objection  of  defendant  describes  the  offense  as,  "throatenod 
a  breach  of  peace."  There  were  several  objections  urged  against 
its  introduction  in  evidence.  Those  worthy  of  consideration 
may  be  stated  to  bo  that  it  was  void  upon  its  face,  in  that  it 
charged  no  offense  known  to  the  law,  and  that  the  justice  of  the 
peace  issuing  it  had  no  jurisdiction  to  do  so. 

Section  51G2  of  the  Code  authorizes  the  institution  of  pro- 
ceedings before  magistrates  to  keep  the  peace.  The  purpose  of 
the  statut*^  is  to  prevent  the  connnission  of  an  offense  against 
the  person  or  property  of  another,  and  to  this  end  a  warrant  may 
issue  for  the  arrest  of  the  person  who  has  threatened  or  is  about 
to  commit  an  offense  on  the  person  or  property  of  another;  and, 


l\ 


m 


mi 

w 


Ir 
m 

m 


ili^ 


GQ^ 


AMERICAN  CRIMINAL  REPORTS. 


if  there  is  just  reason  to  fear  the  commission  of  such  offense, 
tlie  defcnilant  must  be  required  to  give  security  to  keep  the 
peace,  etc.  Sees.  5163,  5168.  It  is  a  preventive  measure  which 
the  magistrate  is  authorized  to  set  in  motion  to  restrain  the  de- 
fondant  from  the  commission  of  an  offense  against  the  person 
or  property  of  another,  and  not  a  proceeding  to  try  the  person 
charged  Avith  the  commission  of  a  criminal  offense.  To  threaten 
an  offense  on  tlie  person  or  property  of  another  is  not  an  offense 
against  the  law  for  which  a  person  may  be  punished.  At  most, 
as  we  have  said,  he  may  be  restrained  from  so  doing  by  proper 
proceedings,  but  not  punished  by  fine  or  imprisonment.  True, 
should  the  defendant  fail  to  give  the  security  required  by  the 
magistrate,  it  is  the  duty  of  the  magistrate  to  commit  him  to 
jail  until  he  enters  into  the  undertaking  with  sufficient  sureties 
for  the  time  he  is  required  to  keep  the  peace,  not  nwre  than 
twelve  nor  less  thai,  six  months.  But  this  commitment  to  jail 
is  predicated  upon  his  failure  or  refusal  to  give  the  security  re- 
qxiired  by  the  order  of  the  magistrate,  and  not  as  the  punish- 
ment for  the  commission  of  an  offense. 

The  warrant  issued  for  the  arrest  of  the  defendant  in  the 
case  under  consideration  was  in  these  words:  "Complaint  on 
oath  having  been  made  before  me  that  the  offense  of  threatening 
breach  <:if  peace  has  been  committed  in  said  county,  and  charg- 
ing Jack  Howard  with  the  commission  of  said  offense,  you  are 
therefore  conuuanded  to  arrest  said  Jack  Howard  and  bring 
him  before  me  instanter."  The  gist  of  this  warrant  is  that  the 
defendant  had  committed  tlie  offense  of  threatening  a  breach  of 
the  peace.  This  is  emphasized  by  the  language  following, 
"charging  Jack  Howard  with  the  commission  of  said  offense." 
Howard  had  committed  no  offense,  as  shown  by  the  language  in 
tlie  warrant.  Had  the  warrant  read  that  he  has  threatened  an 
offense  on  the  person  or  property  of  another,  he  would  have  been 
apprised  that  he  was  required  to  appear  for  the  purpose  of  hav- 
ing the  question  adjudged  as  to  whether  or  not  he  wo\ild  have 
to  give  security  to  keep  the  peace,  and  that  he  was  not  charged 
with  a  criminal  offense.  When  this  Avarrant  was  shown  him  or 
read  to  him,  he  doubtless  believed,  and  had  a  right  to  believe, 
nor  was  there  a  clear  inference  deducible  from  the  language  to 
the  contrary,  that  the  attempt  to  arrest  him  was  for  an  offense. 


[ich  ofiFense, 
;o  keep  the 
^sure  which 
rain  the  de- 
the  person 
the  person 
To  threaten 
t  an  offense 
.  At  most, 
^  hy  proper 
ent.  True, 
ired  hv  the 
niit  him  to 
3nt  sureties 
more  than 
lent  to  jail 
security  re- 
the  punish- 

lant  in  the 
mplaint  on 
;hreatcning 
and  charg- 
se,  vou  are 

and  bring 

is  that  the 
a  hroaeh  of 

following, 
d  offense." 
angnage  in 
eatened  an 
I  have  been 
ose  of  hav- 
vould  have 
lot  charged 
iwn  him  or 

to  believe, 
anguage  to 
an  offense, 


STATE  V.  ROLLINS. 


ccr 


for  which  he  was  to  be  punished,  wliich  designated  offense  was 
unknown  to  the  law,  and  not  punishable.  The  warrant  was  void 
upon  its  face,  and  the  defendant  was  under  no  legal  duty  to 
submit  to  an  arrest.     'Noh.s  v.  The  State,  2-i  Ala.  GT2. 

This  remlers  it  unnecessary  to  review  the  other  questions 
raised  in  the  record.  The  judgment  of  conviction  nmst  be  an- 
nulled and  reversed,  and  the  cause  remanded. 

Keversed  and  remanded. 


State  v.  Rollins. 

50  La.  Ann.  925—24  So.  Rep.  664. 

Decided  May  16,  1898. 

Rights  of  the  Accused:   The  accuseds  right  to  assistance  ly  counsel 
to  prepare  motion  for  new  trial. 

1.  Though  the  law  has  not  imposed  upon  courts  the  duty  of  inform- 

ing accused  parties  that  they  are  entitled  to  counsel,  and  asking 
them  whether  they  desire  that  counsel  should  be  assigned  to 
them,  It  has  become  almost  universally  the  practice  for  them  to 
do  so  ex  proprio  motn. 

2.  While  the  fact  that  a  prisoner  does  not  ask  the  court  to  assign 

counsel  to  him,  and  he  chooses  to  appear  by  himself,  and  he  is 
convicted,  does  not  entlUe  him  to  a  new  trial  because  of  his  want 
of  counsel  {State  v.  Kelly,  25  La.  Ann.  382),  it  is  none  the  less  a 
fact  to  be  considered  in  connection  with  others,  for  the  purpose 
of  ascertaining  whether,  in  any  particular  case,  he  has  been  ac- 
corded the  full  opportunities  for  defense  which  it  is  the  duty  of 
the  State  to  extend  to  its  people,  even  those  who  may  be  ulti- 
laately  and  deservedly  found  guilty  of  crime. 

3.  The  right  to  move  for  a  new  trial  is  guarantied  to  the  defendant 

in  the  smallest  civil  cases.  In  criminal  cases  the  same  right  ex- 
ists, as  also  the  additional  right  of  moving  in  arrest  of  judg- 
ment for  defects  apparent  on  the  face  of  the  record.  These  rights 
may  be  waived  by  the  parties,  but  they  cannot  be  denied  by  the 
courts.  The  law  contemplates  the  giving  of  reasonable  opportun- 
ity for  preparation  and  examination.  To  refuse  a  reasonable  time 
for  the  exercise  of  a  right  is  tantamount  to  a  denial  of  the  right 
itself.  State  v.  Gardner,  10  La.  Ann.  25. 
(Syllabus  by  the  Court.) 

Appeal  from  the  Twenty-Second  Judicial  District  Court  for 
the  Parish  of  St.  Beniard;  Hon.  Robert  Ilinglo,  Judge. 


li!- 


it 


vir'    i 


L 

f'  1 

w 

m 

1 

G68 


AMERICAN  CRIMINAL  REPORTS. 


!Moso3  UoUins,  being  ncousod  upon  two  informations  of  crim- 
inal offenses,  wont  to  trial  without  the  assistaneo  of  counsel.  IIo 
was  found  guilty;  after  which  he  immediately  secured  the  aid 
of  counsel,  who  applied  for  time  to  prepare  a  motion  for  new 
trial ;  but  the  court,  because  the  time  for  adjournment  had  ar- 
rived, requested  counsel  to  state  the  grounds  for  the  motion, 
which  being  done,  the  motion  was  overruled  and  sentence  CJI- 
tercd.    The  defendant  appealed.    Reversed. 

A.  E.  &  0.  S.  Livamhis,  for  the  appellant. 
M,  J.  Ciitmh\(jhnm,  Atty.  Gen.,  and  Albert  Esloplnal,  Jr., 
Dist.  Atty.  (P.  A.  Simmons,  Jr.,  of  counsel),  for  the  State. 

Xiciioi.Ls,  C.  J.  On  the  1st  of  ^Earch,  1897,  two  informa- 
tions were  filed  against  the  defendant.  The  first  charged  that 
he  had,  on  September  30,  189G,  wilfully  and  maliciously,  and 
with  a  dangerous  weapon,  to  wit,  a  pistol,  inflicted  a  wound  less 
than  mayhem  upon  one  Wash  Williams  with  the  intent  him,  the 
said  Wash  AVilliams,  to  kill.  The  second  charged  that  he  had, 
on  the  30th  of  September,  189G,  carried,  concealed  about  his 
person,  a  concealed  weapon,  to  wit,  a  loaded  pistol. 

The  minutes  of  the  court  of  date  of  ^larch  7,  1897,  show  that 
the  accused  was  on  that  day  brought  to  the  bar,  in  the  custody 
of  the  sheriff;  that,  l)eing  arraigned,  on  each  of  the  charges  ho 
pleaded  "Xot  guilty;"  whereupon,  on  motion  of  the  district 
attorney,  the  case  was  fixed  for  trial  for  ^larch  16,  1897,  and 
accused  was  released  on  bond.  For  some  reason,  unexplained, 
the  cases  wore  not  trie(^  on  that  day. 

On  the  7th  of  ^larch  of  the  next  year  (1898),  the  accused 
having  failed  to  answer  to  his  name  when  called,  a  bench  wai*- 
rant  issued  for  his  arrest,  returnable  !Mareh  8,  1898.  On  that 
day,  the  cases  were  fixed  for  trial  for  the  10th  of  the  month. 
The  minutes  do  not  show  that  the  accused  was  present  when 
they  were  so  fixed.  The  minutes  of  the  lOtli  recite  that  ''tlioso 
cases,  regularly  fixed,  came  on  their  day  for  trial.  Present: 
A.  Estopinal,  Jr.,  District  Attorney,  for  State;  the  accused  pres- 
ent in  court,  and  represented  in  proprui  persona.  The  accusinl 
being  ready  for  trial,  the  following  persons  [naming  them] 
were  duly  called,  presented,  accepted,  and  sworn  as  the  jury  to 
try  these  cases. 


STATE  V.  ROLLINS. 


660 


mg  of  crim- 
lounsol.  IIo 
rod  the  aid 
on  for  now 
ont  had  ar- 
tlie  motion, 
eiitenco  eji- 


op'mnl,  Jr., 
e  State. 

•o  informa- 
largcd  that 
iously,  and 
wound  less 
lit  liim,  the 
lat  lie  had, 
I  about  his 

,  show  that 
;ho  custody 
charges  ho 
he  district 
1807,  and 
lexphiinod, 

he  accused 
bench  war- 
.  On  that 
the  month, 
'sent  when 
that  ''these 
Present : 
:'used  pres- 
he  accused 
ing  them] 
he  jury  to 


■  ■  "The  evidence  being  completed,  these  cases  wore  submitted. 
The  court  charged  the  jury  in  relation  to  each  of  tlie  charg.-a 
of  wounding  with  intent  to  kill,  and  c.irrying  concealed  weapons, 
ordered  them  to  retire  to  their  room  to  deliberate  on  tln-ir  ver- 
dict, and  to  appoint  their  own  foreman.  After  a  short  absence 
the  jury  returned  into  court,  aii<l,  through  their  foreman, 
Francis  Bourg,  returned  a  verdict  of  guilty  as  charged  .•n  eaeli 
information ;  whereupon  the  court  ordered  the  verdicts  rcH-ordi'd 
and  the  jury   discharged  from  further  considcralion  of  the 


cases. 


» 


Defendant,  through  counsel,  moved  for  a  new  trit.i,  on  tho 
grounds:  1.  JJecause  the  verdict  of  the  jury  was  contrary  to  tho 
law  and  the  evidence.  2.  IJecause  the  defendant  had  had  no 
sufficient  notice  of  the  assignment  of  his  cases  for  trial.  .'5.  Be- 
cause  tho  accused,  who  was  unprepared  for  trial,  and  had  no 
counsel  to  represent  him,  was  tried  and  convieted  solely  upon 
the  testimony  of  the  witnesses  for  the  prosecution,  and  in  the 
absence  of  his  witnesses,  whose  names  he  had  funiished  to  tho 
proper  officer,  and  which  said  witnesses  could  easily  have  been 
procured,  they  all  being  residents  of  the  parish.  4.  Because  the 
accused,  who  is  illiterate,  and  had  no  means  to  employ  counsel, 
had  every  reason  to  believe  that  his  witnesses  would  have  been 
summoned  (he  having  funiished  their  names  to  the  committing 
magistrate,  who  had  marked  their  names  on  the  back  of  the  atll- 
davit),  until  the  time  when,  during  the  trial,  he  caused  the  first 
of  his  witnesses  to  be  called,  when  he  discovered  for  the  first 
time  that  none  of  his  witnesses  had  been  summoned.  5.  Be- 
cause, since  the  trial  of  the  cause,  his  frien<ls  had  procured  him 
the  assistance  of  coimsel,  and  he  then  invoked  the  right  to  bo 
jiermitted  to  establish  his  defense  by  lawful  evidence,  and  to  ob- 
tain the  process  of  the  court  to  procure  the  attendance  of  his 
witnesses. 

The  motion  for  a  new  trial  was  overrule«l. 

The  accused  was  brought  to  the  bar,  and  senteneeil. 

The  minutes  recite  that  "the  court,  on  the  verdict  of  guilty 
of  wounding  with  intent  to  kill,  considering  section  T!)4  of  the 
Revised  Statutes,  sentenced  Moses  Rollins  to  imprisonment  in 
the  State  penitentiaiy  at  hard  labor  for  a  period  of  eight 
months,  and  to  pay  a  fine  of  one  dollar;  and,  on  the  verdict  of 


!,t 


I.  s 


m 


670 


AMERICAN  CRIMINAL  REPORTS. 


-I 


?';  if[ 


m 


» I 


0^ 


'■  '!i;l 


Iff 


i'    Ml 


giiilty  of  cnrryln;?  concealed  weapons,  tlio  court,  conHiilerlng 
section  932  of  the  Revised  Statutes,  sentenced  Closes  Kolliiis  to 
pay  a  fine  of  fifteen  dollars  and  costs,  and  in  default  thereof  to 
sutler  imprisonment  in  the  parish  jail  for  a  ^wriod  of  twenty- 
five  days." 

Defendant  filed  a  bill  of  exceptions  to  the  action  of  tho  court 
in  refusing  a  new  trial. 

This  bill  recites  that,  immediately  after  tho  verdict  was  ren- 
dered in  the  case,  counsel  for  the  accused  applied  for  a  new 
trial,  or  for  time  to  prepare  application  for  new  trial;  whoie- 
upon  the  court  declared  that  this  was  the  last  day  ho  intended 
to  hold  court  in  the  parish  for  the  present  tenp,  and  requested 
o(mnsel  to  state  tho  grounds  upon  which  would  lie  based  his  said 
intended  application ;  and  said  counsel  having  done  so,  ia  tho 
manner  above,  and  as  well  as  tho  short  time  allowed  and  his 
knowledge  of  the  case  ponnitted,  the  judge,  overruling  said  mo- 
tion, proceeded  forthwith  to  sentence  the  accused,  under  said 
verdict,  and  sec.  794,  R.  S.,  to  pay  a  fine  of  one  dollar  and  suf- 
fer imprisonment  at  hard  labor  for  eight  months.  Whereupon 
counsel  for  accused  reserved  a  bill  of  exception  to  the  ruling  of 
the  court. 

The  district  judge  made  the  following  statement  upon  the 
bill:  'The  trial  took  pi -co  on  Thursday,  March  10,  1898,  it 
being  the  last  day  of  the  present  term  of  the  court.  The  ac- 
cused was  indicted  for  tho  offense  at  a  prior  term  of  this  court, 
and  his  case  continued  to  the  present  term,  he  being  released  on 
bond  for  his  appearance  thereto.  On  Monday,  March  7,  1S9S, 
the  prisoner  having  failed  to  appear  for  trial,  on  motion  of  t)»o 
district  attoniey  a  bench  warrant  issued  for  his  arrest,  and  on 
Tuesday,  March  8th,  the  following  day,  being  brought  into 
court,  his  case  was  fixed  for  trial  for  Thursday,  March  10,  1898. 
On  the  day  of  his  trial,  the  defendant  was  asked  the  following 
question  by  the  court:  'Do  you  wish  to  l)e  tried  by  the  judge  or 
by  the  jury  V  He  answered :  'Dy  a  jurj'.'  The  sheriff  was  thou 
ordered  to  call  the  names  of  the  witnesses  summoned  by  the 
State  and  by  the  defendant,  which  he  did,  in  the  presence  of 
the  accused,  and  the  trial  was  then  proceeded  with,  without  ob- 
jection on  the  part  of  the  defendant.  1.  The  verdict  ri3ndere(l 
was  in  accordance  with  the  law  and  the  evidence.     2.  The  de- 


STATE  )•.  ROLLINS, 


071 


jonHitloring 

I  KolliuH  to 

\.  thereof  to 

of  twcnty- 

>f  tlio  court 

ct  was  reii- 
for  n  new 
iul;  wlioro- 
le  intentlod 
\  roqncstod 
!0(1  his  snid 
;  so,  iu  tho 
ed  and  his 
tig  said  mo- 
under  said 
ar  and  suf- 
Whcroupon 
le  ruling  of 

t  upon  tho 
0,  1808,  it 
The  ac- 
this  court, 
released  on 
^h  7,  1898, 
•tion  of  tho 
Dst,  and  on 
ought  into 
1  10,  1808. 
3  following 
le  judge  or 
ff  was  then 
led  by  tho 
presence  of 
R'ithout  ol)- 
it  rendered 
2.  The  de- 


fendant had  sufficient  notice  of  the  assiguniont  of  his  cast'  fi.r 
trial.  3.  The  prisoner  did  not  ask  the  court  to  assign  an  attor- 
ney to  defend  him,  and  chose  to  appear  l»y  hinisclf,  n-.i-  ,11,1  1,,. 
ask  for  a  continuance  on  any  gronml  wliatsoevor.  4.  Tli(>  names 
of  the  witnesses  furnished  to  the  sheritl'  hy  him  wi-iv  *mu- 
nioned,  with  the  exception  of  one  who  could  not  lie  t'numl.  Tli('^(> 
witnesses  were  present  at  the  trial  of  the  cause,  and  their  testi- 
mony was  given  on  behalf  of  the  defendant.  The  services  ,,t' 
counsel  were  secured  only  after  verdict,  and  at  the  very  nmnii'iit 
that  tho  defendant  was  to  receive  sentence.  It  was  iIkmi  their 
motion  for  a  new  trial  was  made.  5.  The  defendant  or  his 
friends  had  ample  time  prior  to  the  trial  to  procure  the  assist- 
ance of  counsel." 

No  assignment  of  error  was  made  in  the  Sui'/remo  Court,  nor 
was  any  brief  filed  on  behalf  of  appellant.  Ilis  counsel  argued 
the  case  orallv. 

Tho  accused  in  this  case  went  to  trial  without  the  assistance 
of  counsel.  There  is  no  pretense  that  the  court  informed  him 
that  ho  was  entitled  to  counsel,  or  asked  him  whether  he  desired 
that  counsel  should  he  assigned  to  him.  Though  the  giving  of 
this  information  and  the  asking  of  this  question  have  not  been 
imposed  upon  courts  by  law,  it  has  become  almost  universally 
the  practice  for  them  to  do  so  ex  propHo  moiu.  While  it  has 
been  held  that,  if  a  prisoner  does  not  ask  the  court  to  assign  an 
attorney  to  defend  him,  and  chooses  to  appear  by  himself,  and 
he  is  convicted,  the  want  of  counsel  is  no  good  reasou  for  a  new 
trial  {State  v.  Kelly,  25  La.  An.  382),  it  is  none  the  less  a  fact 
to  be  considered  in  connection  with  others,  for  the  purpose  of 
ascertaining  whether,  in  any  particular  case,  he  has  been  ac- 
corded the  full  opportunities  for  defense  Avhich  it  is  the  duty  of 
the  State  to  extend  to  its  people,  even  those  who  may  be  ulti- 
mately and  desen'edly  found  guilty  of  crime. 

The  minutes  do  not  show  that  the  appellant  was  present  wl.cn 
the  case  was  assigned  for  trial.  Per  sc,  standing  alone,  that  fact 
might  not  be  good  ground  for  a  new  trial,  but  this  also  is  a  cir- 
cumstance to  be  considered.  The  district  judge,  in  his  reasons 
for  refusing  a  new  trial,  states  that  appellant  was  present  at 
that  time;  but  that  is  not  the  proper  place  where  such  fact 
should  appear.     Defective  minutes  are  not  to  be  eked  out  by 


G72 


AMERICAN  CRIMINAL  REPORTS. 


mi 


ri  i^    '{■; 


It,  -1,     !  !'< 


statements  so  made  by  the  judge.  The  case  was  tried  two  days 
after  the  assiginiient.  The  clerk  in  his  minutes  recites  as  a  fact 
that  the  accused  was  ready  for  trial  when  the  case  was  called, 
but  the  minutes  do  not  declare  that  he  was  asked  whether  he 
was  ready,  and  answei'cd  that  he  was.  As  matters  stand,  the 
statement  is  a  mere  conclusion  of  the  clerk.  If  the  court's  state- 
ment be  taken  as  showing  the  facts  of  the  case  at  that  time,  ho 
was  not  asked  that  qiiestion  at  all,  but  simply  'Svhether  he  would 
be  tried  by  the  court  or  the  jury ;"  and,  having  answered,  "By 
the  jury,"  the  juiy  was  at  once  called,  impaneled,  and  sworn, 
and  the  case  at  once  disposed  of.  The  court  saj's  the  sen'ices  of 
counsel  were  secured  only  after  verdict  and  at  the  very  moment 
that  the  defendant  was  to  receive  sentence ;  "that  it  was  then 
that  motion  for  new  trial  was  made."  That  is  true,  but  the  rec- 
ord shows  that  the  verdict  in  the  case,  the  motion  for  a  new 
trial,  the  sentence  of  the  accused,  and  the  adjournment  of  court 
all  followed  in  rapid  succession  on  the  same  day.  The  motion 
for  a  new  trial  comes  before  us  in  a  very  irregular  manner.  J  t 
is  unsworn  to,  and  reaches  us  as  part  of  the  minutes  of  the  court. 
The  reason  for  this  appears  to  have  arisen  from  the  fact  that  the 
court  declined  to  grant  comisel  of  accused  time  to  write  out  his 
motion,  and  insisted  that  he  should  state  his  grounds  for  tliu 
same  at  once.  The  reasons  seem  to  have  been  assigned  verbally, 
and  to  have  been  taken  down  by  the  clerk.  We  see  no  reason 
for  this  haste.  Counsel  for  accused  could  not  have  acted  any 
more  promptly  than  they  did. 

The  judge  states  that  all  this  happened  upon  the  day  that  ho 
intended  to  adjouni  the  court;  but  this  intention  to  adjourn 
should  have  given  way,  at  once,  before  the  reasonable  demand 
made  for  time  to  prepare  the  legal  motions  which  the  law  allows 
to  be  made  between  vei'dict  and  sentence.  There  is  no  reason 
assigned  by  the  court  why  this  hasty  adjournment  t.iiould  have 
been  made  on  that  day,  and  we  see  none. 

In  State  v.  (laidiier,  10  La.  An.  25,  this  court  said :  "'The 
right  to  move  for  a  new  trial  is  guarantied  to  the  defendant  in 
the  smallest  civil  cases.  In  criminal  cases  the  same  right  exists, 
as  also  the  additional  right  of  moving  in  arrest  of  judgment  for 
defects  apparent  on  the  face  of  the  record.  These  rights  may 
be  waived  by  the  parties,  but  they  cannot  be  denied  by  tho 


STATE  V.  ROLLINS. 


C73 


!(1  two  days 
OS  as  a  fact 
was  called, 
wLolher  he 
i  stand,  the 
xirt's  sta  te- 
at time,  ho 
5r  he  would 
ivered,  "J'y 
and  sworn, 
sen'iecs  of 
ry  moment 
t  was  tluMi 
but  the  ree- 
for  a  new 
nt  of  court 
Che  motion 
lanner,    Jt 
f  the  court, 
let  that  the 
•ite  oiit  his 
ids  for  the 
d  verhally, 
no  reason 
acted  any 

lay  that  ho 
.0  adjourn 
le  demand 
law  allows 
no  reason 
lould  have 

aid:  "The 
fendant  in 
gilt  exists, 
Ifjuient  for 
•ights  may 
ed  by  the 


courts.  To  refuse  a  reasonable  time  for  the  exercise  of  a  ri"l.t 
is  tantamount  to  a  denial  of  the  right  itself.  This  is  exempli- 
fied in  the  present  case.  According  to  Hawkins,  the  rule  in  the 
Kmg's  Bench,  in  cases  of  misdemeanors,  was  that  four  dsivs 
should  elapse  between  the  conviction  and  the  judgment,  if  there 
Avere  so  many  days  remaining  in  the  term.  It  is  said  b'y  Chitty 
that  the  court,  if  they  grant  a  male  nisi,  will,  at  the  instance  of 
the  party  applying,  make  it  a  part  of  the  rule  that  the  defendant 
should  have  a  certain  time,  e.  g.,  three  dnys,  to  move  in  arresfc 
of  judgment,  after  they  shall  have  given  their  opinion  upon  the 
motion  for  a  new  trial,  or  the  defendant  may  obtain  a  rule  in 
the  alteniative,— though,  as  the  motion  in  arrest  may  be  miido 
at  any  time  before  judgment  is  pronounced,  it  would  seem  tliat 
such  a  special  rule  is  not  necessary.  The  analogy  between  crim- 
inal and  civil  proceedings,  in  the  English  court,  in  regard  to 
these  matters  of  practice,  is  very  striking.  Our  Code  of  Prac- 
tice relates  to  civil  proceedings  alone,  but,  by  analogy,  it  may 
occasionally  afford  a  safe  guide  to  criminal  proceedings.  AVe 
are  not  called  on  to  determine  what  a  reasonable  time  for  the 
l)reparation  of  the  motion  in  question  would  be;  we  only  say 
that  the  judge  erred  in  refusing  to  grant  any  time  whatever.'' 
Those  views  are  thoroughly  correct. 

It  will  not  do  to  say  that  the  motion  for  a  new  trial  was,  in 
fact,  made  and  overnded.  The  law  contemplates  a  motion  made 
with  reasonable  opportunities  for  preparation,  and,  in  this  case, 
for  examination.  It  may  be  that  the  accused  was  proj)erly  found 
guilty,  and  that  he  should  be  punished.  If  that  be  true  and  he 
be  not  punished  now,  it  will  demonstrate  that  harsh  proceedings 
in  the  district  court  are  not  the  surest  and  best  methods  of  secur- 
ing the  ends  of  justice. 

We  are  of  the  opinion  that  the  sentence  appealed  from  should 
be,  as  prematurely  rendered,  set  aside,  and  the  cause  remanded 
to  the  district  court,  and  there  reinstated  on  the  docket,  with 
leave  to  the  defendant  to  make  formal  motions  for  a  new  trial 
and  in  arrest  of  judgment,  and  for  further  proceedings  accord- 
ing to  law,  and  it  is  hereby  so  ordered  and  decreed. 
Vol.  XI  — 43 


674 


AMERICAN  CRLMINAL  REPORTi 


Mi 


Spexckr  v.  State. 

106  Ga.  692—32  S.  E.  Rep.  849. 

Decided  March  14,  1899. 

RonBERY:  Distinctions  between  robbery  and  larceny  from  the  person- 
Force,  violence  and  intimidation  necessary  elements  of  robbery. 

Suddenly  snatching  a  purse,  with  intent  to  steal  the  same,  from  the 
hand  of  another,  without  using  intimidation,  and  where  there  is 
no  resistance  by  the  owner  or  injury  to  his  person,  does  not  con- 
stitute robbery. 

(Syllabus  by  the  Court.) 

Frank  Spencer,  alias  Joe  Brown,  convicted  of  robbery  in  tbe 
Glynn  County  Superior  Court,  Hon.  J.  L.  Sweat,  Judge,  brings 
error.    Reversed. 

Owens  Johnson  and  ^1.  D.  Gale,  for  the  plaintiff  in  error. 
John  W.  Bcnnclt,  Solctr.  Gen.,  for  the  State. 

!f  isH,  J.  Frank  Spencer,  alias  Joe  Bro\vn,  was  indicted  and 
tried  for  the  offense  of  robbery.  From  the  evidence  submitted 
by  the  Stato  (there  was  no  evidence  introduced  by  the  defend- 
ant) it  appeal's  that  ^Irs .  O'Connor  and  another  lady  were 
standing  on  a  street  in  the  city  of  Brunswick,  when  the  accused 
approached  them,  and  asked,  "Will  you  please  tell  me  whore 
Capt.  Dart  lives  ?"  and  just  as  he  said  this  he  snatched  a  pocket- 
book  containing  $7.50  from  the  hand  of  !l[rs.  O'Connor,  and 
ran  away  with  it.  She  testified  that  she  did  not  have  time  to 
hold  on  to  the  book,  it  was  all  done  so  quickly;  that  she  just 
had  it  in  her  hand,  as  ladies  usually  carry  pockctbooks,  and  was 
not  expecting  it  to  be  taken  away  from  her,  and  was  therefore 
not  grasping  it  imusually  tight;  that  she  did  nothing  at  all  to 
])rovent  him  from  taking  it ;  that  she  did  not  consent  or  object 
to  his  taking  it,  as  she  did  not  have  time  to  do  cither;  that  the 
acciisod  had  it,  and  was  gone,  before  she  knew  it.  The  court 
charged  the  jury:  "If  you  shall  find  it  to  be  true  that  this  de- 
fendant, in  the  county  of  Glynn,  and  on  the  date  named,  com- 
ing into  contact  with  Mrs.  Mary  O'Connor  upon  the  sidewalk, 
and  entering  into  some  conversation  with  her,  or  propounding 
some  question  to  her,  or  to  others  who  were  with  her,  if  you  shall 
find  that  she  held  her  purse  openly  in  her  band,  and  this  do- 


-^■, 


SPENCER  V.  STATE. 


675 


he  person-m 
robbery. 

le,  from  the 
ere  there  Is 
oes  not  con- 


lery  in  the 
dge,  brings 

error. 


iJicted  ami 
I  submitted 
;he  defend- 
lady  Avcre 
he  accused 
nie  where 
d  a  pocket- 
onnor,  and 
ive  time  to 
at  she  just 

,  and  was 
s  therefore 
g  at  all  to 
t  or  object 
r;  that  the 
The  court 
at  this  de- 
nned, eom- 

sidewalk, 

opounding 

f  you  shall 

lid  this  de- 


fendant, in  full  view  of  her,  and  with  her  knowledgo,  she  seoiii;' 
him,  suddenly  snatched  her  purse  and  iu  contonts  from  lior 
without  her  consent,  and  ran  off  with  it, — the  court  charocs  von 
that  if  you  shall  find  that  to  bo  true,  and  that  this  was  dime'  by 
this  defendant  with  intent  to  steal  the  same,  that  w(.uld  make, 
under  the  law  of  this  State,  a  case  of  robbery,  and  in  such  event 
it  would  be  your  duty  to  convict  the  defendant."  There  was  a 
verdict  finding  the  accused  g\iilty  of  robbery.  ILo  moved  fm-  a 
new  trial  upon  the  grounds  that  the  verdict  was  coutniry  to  law 
and  the  evidence,  that  the  charge  above  quoted  was  error,  and 
upon  other  grounds  not  necessary,  in  the  view  which  we  take  of 
the  case,  to  be  passed  upon.  The  motion  was  overruled,  and  he 
excepted. 

Tiie  question  which  controls  this  case  is  whether  tbe  facts  as 
proved  constitute  the  offense  of  robl)ery,  which  is  "the  wrongful, 
fraiululent,  and  violent  taking  of  money,  goods  or  chattels  from 
the  person  of  another  by  force  or  intimidation,  without  the  con- 
sent of  the  owner."  AVe  have  no  ditRc..-.y  in  deciding  that  this, 
under  the  facts,  is  not  a  case  of  robbery.  Section  177  of  the 
Penal  Code,  referring  to  larceny  from  the  person,  the  general 
definition  of  which  is  given  in  the  preceding  section,  says:  "Any 
sort  of  secret,  sudden,  or  wrongful  taking  from  the  pcn'son  with 
the  intent  to  steal,  without  using  intimidation,  or  open  force 
and  violence,  shall  be  within  this  class  of  larceny,  though  some 
small  force  be  used  by  the  thief  to  possess  himself  of  the  prop- 
ertv :  Provided,  there  l)e  no  resistance  bv  the  owner,  or  iniurv 
to  his  person,  and  all  the  circumstances  of  the  case  show  that  the 
thing  Avas  taken,  not  so  much  against  as  without  the  consent  of 
the  owner."  The  facts  of  this  ease  bring  it  clearly  within  the 
provisions  of  this  section.  The  accused,  without  using  any  in- 
timidation, suddenly  snatched  the  purse  from  the  hand  of  ^^[rs. 
O'Connor,  and  ran  off  with  it.  There  was  no  injury  to  her 
person,  nor  any  resistance  or  struggle  to  prevent  him  from  tak- 
ing the  purse.  All  the  circumstances  of  the  case  show  that  the 
purse  was  taken,  not  so  much  against  as  without  her  consent. 
The  charge  of  the  court  was  erroneous,  because,  under  tlie  hypo- 
thetical case  stated  by  the  court,  without  more,  the  offense  would 
not  be  robbery,  but  would  be  larceny  from  the  ])erson,  under 
the  provision  of  the  last-quoted  section  of  the  Penal  Code. 


mi 


'r ' 
it, 


li 


m 


676 


AMERICAN  CRIMINAL  REPORTS. 


M 


w  ii  r 


i>'i 


In  Fanning's  Case,  CG  Ga.  107,  the  accused  slipped  his  hand 
into  a  lady's  outsiile  pocket,  and  furtively  took  therefrom  a 
purse  of  money.  Before  he  got  the  purse  entirely  out,  she  felt 
the  hand,  and  tried  to  seize  it,  but  the  thief  had  succeeded,  and 
the  purse  Avas  gone.  In  the  effort  of  the  thief  to  extract  his 
hand  and  the  purse,  the  pocket  was  torn.  She  rushed  upon  him, 
and  caught  him  l»y  the  coat,  which,  in  his  struggle  to  escape,  was 
left,  torn,  in  her  jxjssession.  It  was  held  that  the  offense  was 
larceny  from  the  person,  and  not  robbery,  because  there  was  no 
force  or  intimidation  in  the  act. 

Counsel  for  the  State  strongly  relies  upon  Burke's  Case,  7-i 
Ga.  372,  contending  that  the  facts  there  and  those  in  the  case 
at  bar  are  substantially  the  same.  But  there  is  evidently  not  a 
full  statement  of  the  facts  in  that  case  as  it  is  reported  in  74  Ga., 
for  it  does  not  appear  in  such  report  that  the  owner  of  the  money 
taken  by  Burke  made  any  resistance,  but  simply  that  the  ac- 
cused grabbed  four  dollars  from  his  hand,  and  ran ;  that  the 
owner  called  after  him,  etc.  Yet,  the  headnote,  Avhich  is  sound 
law,  is  as  follows:  ''Where,  before  the  felonious  taking  of 
money  by  one  person  from  another,  the  latter  makes  resistance, 
and  the  taking  is  not  only  without  his  consent,  but  against  it, 
the  crime  is  robbery,  not  larceny  from  the  person."  The  record 
of  the  case  is  not  at  hand,  but  the  recorded  opinion  of  ^Fr,  Jus- 
tice Hall  is  as  follows :  "The  (piestion  made  in  his  case  is  that 
the  defendant,  who  was  convicted  of  robbery,  was,  under  the 
evidence  adduced  on  the  trial,  guilty  of  nothing  more  than  lar- 
ceny from  the  person.  Both  the  judge  and  the  jury  who  tried 
the  case  were  of  a  different  opinion,  and,  if  the  testimony  is  to 
be  credited,  their  conclusion  seems  to  be  supported.  It  is  in- 
sisted that  this  was  a  secret,  sudden,  and  wrongful  taking  by 
the  defendant  of  the  prosecutor's  money  privately,  and  without 
his  knowle<lge,  from  his  person ;  and  that  the  theft  was  unac- 
companied either  by  force  or  in^^imidation,  one  or  the  other  of 
which  is  essential  to  constitute  the  offense  of  robber}'.  Code 
1882,  §§  4389,  4410,  4412.  According  to  the  last-cited  section 
of  the  Code,  however,  Avhere  there  is  'resistance'  by  the  prosecii- 
tor,  and  'all  the  circumstances  of  the  case  show  that  the  thing 
was  taken  against  his  consent,'  this  constitutes  the  force  con- 
templated by  the  law  defining  robl)ery  as  one  of  its  ruling  ele- 


SPENX'ER  V.  STATE. 


07' 


(1  his  haiul 
lerefroni  a 
ut,  she  folt 
!CC(led,  aiul 
extract  his 
upon  him, 
?seapo,  was 
)tt"eiise  was 
ere  was  no 

's  Case,  74: 
in  the  case 
entlv  not  a 
[  in  74  Ga., 
the  money 
liat  the  ac- 
1 ;  that  the 
ih  is  sound 
taking  of 
resistance, 
against  it, 
The  record 
>f  ^Tr,  .Tus- 
?ase  is  that 
under  the 
'6  than  lar- 
■  who  tried 
niony  is  to 
It  is  in- 
taking  hy 
nd  without 
was  unac- 
\\e  other  of 
jry.     Code 
ted  section 
he  prosecii- 
t  the  thing 
force  eon- 
ruling  ele- 


10 


ments.  'If  there  is  a  struggle  to  retain  the  possession  ..f  tl  _ 
property  before  it  is  taken,  it  is  the  "force"  of  our  Penal  Code.' 
Long's  Case,  12  Ga.  2!)-t ;  Fann'mg's  Case,  CO  Ga.  I(i7.  If  there 
bo  'resistance'  before  the  felonious  taking  is  complete,  and  that 
taking  be  against,  not  simply  without,  the  owner's  consent,  this, 
too,  under  our  Code,  is  robbery,  and  is  one  of  the  decisive  tests 
distinguishing  it  from  larceny  from  the  person.  There  was  in 
this  case  evidence  both  of  'resistance'  by  the  owner  and  of  a 
struggle  between  him  and  the  defendant  before  the  money  was 
snatched  from  his  person  and  carried  away  l)y  defendant."  This 
last  sentence  in  the  opinion  in  Burke's  Case,  alone,  shows  the; 
difference  between  the  facts  in  that  case  and  those  in  the  case 
which  we  are  now  considering.  .In  Doyle's  Case,  77  Ga.  5l:>, 
the  prosecutor  agreed  to  treat  the  accused  to  a  drink,  and  took 
out  his  pocketbook  to  pay  for  it.  lie  had  the  book  in  one  hand, 
and  in  the  other  a  rubber  strap  which  he  had  taken  from  around 
it.  In  the  pocketbook  was  a  five-dollar  bill  with  one  end  stick- 
ing out.  The  accused  extracted  it  from  the  book  witli  a  (piick 
jerk,  and  passed  it  to  a  confederate,  who  made  off  with  it. 
There  was  no  struggle  and  no  threats;  the  accused  merely 
snatched  or  jerked  the  money  from  the  pocketbook,  which  the 
prosecutor  held  in  his  hand.  It  was  held  that  these  facts  did  not 
constitute  the  offense  of  robbery,  and  the  ruling  was  put  on 
Burl-e's  Case,  supra.  !AIr.  Justice  Hall,  avIio  also  delivered  the 
opinion  in  that  case,  said  that,  in  view  of  the  fact  that  almost 
every  community  is  infested  with  thieves,  who  throw  unsuspect- 
ing persons  off  their  guard,  and  snatch  money  or  other  valual)les 
from  their  pei-sons,  the  court  unanimously  recommended  to  the 
General  Assembly  that  such  offense  be  made  robbery. 

Counsel  for  the  State*  also  cites  Vsovi's  Case,  97  Ga.  1!U,  22 
S.  E.  Rep.  399,  but  in  that  case  there  Avas  evidence  both  of  re- 
sistance by  the  owner  of  the  satchel  and  of  a  struggle  between 
her  and  the  accused  before  it  was  pulled  from  her  luunl,  and 
the  case  is  directly  in  line  with  those  which  we  have  cited  above. 

The  distinction  betAveen  robbery  and  larceny  from  the  person 
pointed  out  in  our  Penal  Code  and  the  decisions  of  this  court 
above  referred  to  is  one  that  is  generally  recoftiiizod.  '"Siuitch- 
ing,  which  is  a  sufficient  as])ortation  in  simple  larceny,  carries 
with  it  or  not  the  added  violence  of  robbery,  according  as  it  is 


m 


% 


n 


ii 


678 


AMERICAN  CRIMINAL  REPORTS. 


li 


met  or  not  by  resistance."  2  Bisli.  Xew  Cr.  L.,  §  11G7,  and 
cases  cited.  See  Clarke's  Crim.  Law,  285.  "The  mere  snatch- 
ing a  thing  from  the  hands  or  person  of  another,  without  any 
struggle  or  resistance  by  the  owner,  or  any  force  or  violence  on 
the  part  of  the  thief,  does  not  amount  to  robbery."  21  Am.  & 
Eng.  Enc.  L.,  420,  and  cases  cited  in  note  5.  "With  respect  to 
the  degi'ce  of  actual  'violence,'  where  the  taking  is  effected  by 
that  means,  it  appears  to  be  well  settled  that  a  sudden  snatching 
from  a  person  unawares  is  not  sufficient."  2  Buss.  Cr.  (0th  ed.), 
p.  88. 

i  rtdgment  reversed.    All  the  justices  concurring. 


Smith  et  al.  v.  State. 

76  Miss.  728—25  So.  Rep.  491. 

Decided  April  10,  1899. 

Scire  F.\cias:   Forfeited  bail  bond — Service — Variance. 

1.  A  judgment  by  default  is  erroneous  when  not  supported  by  service 

as  required  by  statute. 

2.  Where  personal  service  is  had,  followed  by  a  judgment  by  default, 

and  appeal,  no  advantage  can  be  taken  of  a  variance  between  the 
writ  of  scire  facias  and  the  bond,  the  bond  not  being  a  part  of 
the  record  in  that  proceeding. 

3.  A  fatal  variance  as  to  the  date  in  the  judgment  nisi  and  the  final 

judgment  is  reversible  error. 


t-i' 


><■ 


Appeal  from  the  Circuit  Court  of  Claiborne  County;  Hon. 
William  K.  McLaurin,  Judge. 

Daniel  II.  Smith,  Jr.,  being  indicted  for  keeping  a  gaming 
table,  gave  bail  with  two  sureties.  He  appeared  at  the  next 
term  of  the  circuit  court  and  pleaded  giiilty  of  gambling.  The 
plea  was  accepted  and  a  judgment  entered  suspending  sentence, 
biit  condemning  defendant  to  pay  costs  and  stand  committed 
\mtil  such  costs  be  paid.  At  the  following  term,  the  judgment 
nisi  referred  to  in  the  opinion  was  rendered  against  the  defend- 
ant and  his  sureties,  because  of  his  failure  to  respond  when 
called.  A  writ  of  scire  facias  was  issued  to  Claiborne  county, 
and  was  served  on  the  sureties,  but  returned  "not  found"  as  to 


11G7,  and 
re  snatch- 
thout  any 
iolence  on 
21  Am.  & 
respect  to 
flPected  by 
snatching 
(Gthed.), 


nee. 
by  service 

by  default, 

etween  the 

a  part  of 

d  the  final 


ty;  Hon. 

a  gaming 
the  next 
ng.  Tho 
sentence, 
ommitted 
judgment 
e  defend- 
•nd  when 
e  county, 
nd"  as  to 


LOVELESS  ET  AL  v.  STATE. 


679 


the  principal.  An  alias  writ  was  issued  to  JUmh  county  and  re- 
turned ''not  found"  as  to  the  principal.  A  final  jiulgment  being 
entered  by  default  against  all  parties,  they  appeal.    Keverscd.  " 

Martin  £  Anderson,  for  the  appellants. 
Wiley  N.  Nash,  Atty.  Gen.,  for  the  State. 

Whitfield,  J.  As  to  Daniel  IT.  Suiirli,  Jr.,  the  principal, 
the  judgment  is  erroneous— being  by  default— becinisc  there 
was  no  personal  service  on  him,  nor  were  there,  as  re(inired  as 
an  equivalent  therefor  by  section  13!>G  of  the  Code  of  1802,  "two 
writs  of  scire  facias  returned  by  the  proper  officers  of  the  county 
where  the  bond  or  recognizance  was  entered  into  'not  found.'  " 
Stafford  r.  Stale,  00  ]diss.  928. 

The  sureties  having  been  personally  served,  and  having  failed 
to  appear,  cannot  predicate  error  here  of  a  variance  iHtwecn  tho 
bond  and  the  scire  facias;  because,  in  such  case,  the  bond  is 
"not  properly  a  part  of  the  record  of  that  proceeding,  but  must 
be  brought  before  the  court  by  plea  of  »;//  iicl  record,  or  other 
appropriate  plea."  Ditto  v.  State,  30  :^riss.,  at  p.  128.  IJnt 
there  is  a  fatal  variance  between  the  judgment  nisi  and  tho 
judgment  final,  as  to  the  date  of  the  judgment. 

Say  the  court  in  Ditto  v.  State,  30  .Miss.  12S:  "Where  the 
scire  facias  is  not  supported  in  a  material  respect  by  the  judg- 
ment nisi,  a  judgment  final,  inconsistent  with  the  judgment 
nisi,  is  erroneous,  and,  if  to  a  party's  prejudice,  must  be  re- 
versed." To  the  same  point,  ideuticaliy,  is  Bridges  v.  State, 
24  Miss.  154. 

Reversed  and  remanded. 


Loveless  et  al.  v.  State. 

Tex.  Court  of  Crlm.  App.— 50  S.  W.  Rep.  361. 

Decided  March  8,  1899. 

ScutE  Facias:  Misdescription  of  offense  in  bail  bond. 

A  bail  bond  which  does  not  describe  the  crime  for  which  it  is  given, 
either  by  its  name  or  by  its  essential  elements,  is  insufficient. 


680 


AMERICAN  CRIMINAL  REPORXa 


Appeal  from  the  Kaufman  County  Court ;  Hon.  John  Vescy, 
Judge. 

Judgment  upon  a  bail  bond.    Reversed. 

J.  D.  Cunningham  and  Loc  R.  Stroud,  for  the  appellants. 
liobt.  A.  John,  Asst.  Atty.  Gen.,  for  the  State. 

BijooKS,  J.  Appellants  in  error,  ]\[.  L.  Loveless,  T.  J. 
Reynal,  P.  G.  Lewis,  C.  F,  Priest,  and  J.  V>.  Payton,  sued  out 
a  writ  of  error  against  the  State  of  Texas,  appellee  in  error. 
The  case,  as  indicated  by  the  record  before  us,  is  one  wherein  the 
State  of  Texas  took  a  forfeiture  upon  a  certain  bail  bond, 
wherein  the  appellant  in  error  ^L  L.  Loveless  was  principal,  and 
the  other  appellants  stated  above  were  sureties. 

In  the  view  we  take  of  the  case,  it  is  only  necessary  to  con- 
sider appellants'  first  assignment  of  error,  as  follows:  "Said 
writ  is  insufficient  as  pleading,  and  said  bond  described  therein 
is  likewise  insufficient,  because  neither  said  bond  nor  the  writ 
of  scire  facias  distinctly  describe  any  particular  ofFonsc;  the 
only  description  given  being  'unlawful  selling  of  intoxicating 
]i(piors,'  wh.'ch  language  included  many  distinct  oflfensos, — one 
described  in  article  3S)8,  another  in  article  399,  ano!i\er  in  ar- 
ticle 400,  another  in  article  401,  another  in  article  402,  another 
in  article  404  ct  eeq.  [of  the  Penal  Code], — and  it  cannot  bo 
told  which  of  the  niunerour^  crimes  is  refeired  to."  It  is  well 
settled  that,  where  a  bail  bond  or  recognizance  is  taken  after 
indictment  foimd,  the  very  offense  of  which  the  principal  stands 
charged  in  the  indictment  must  be  named  in  the  bond,  not  the 
class  of  offense.  In  the  case  of  Ramsey  v.  State,  30  Tex.  Crim. 
Rep.  392,  37  S.  W.  Rep.  330,  the  court  said,  where  this  exact 
question  came  up  for  consideration  in  a  recognizance:  '*A])pel- 
lant  is  charged  with  selling  intoxicating  liquors  in  a  local-option 
precinct.  The  recognizance  recites  that  he  'stands  charged  in 
this  court,  by  bill  of  indictment,  with  selling  intoxicating  liq- 
uors, and  who  has  been  convicted  of  said  offense  in  this  court,' 
etc.  This  recognizance,  in  order  to  be  a  valid  undertaking  in 
law,  such  as  to  attach  the  jurisdiction  of  this  .court  on  appeal, 
should  have  further  recited  those  eleriionts  of  the  offense  charged 
in  the  indictment,  to  wit,  selling  intoxicating  liquors  in  a  pre- 
cinct where  local  option  was  in  effect.     Stating  it  in  another 


STATE  V.  MATTHEWa 


681 


)lm  Vesoy, 


oil  ants. 

?8S,    T.    J. 

1,  sued  out 
;  in  (nTor, 
liorein  tlio 
jail  bond, 
icipivl,  and 

ry  to  con- 
,'s:  "Said 
od  therein 
r  the  ^vrit 
Fonsc;  the 
toxicating 
isos, — ono 
iior  in  ar- 

2,  another 
cannot  1)C 
It  is  well 
ikcn  after 
pal  stands 
d,  not  the 
'ex.  Crini. 
this  exact 
:  "Ai)pel- 
cal-oj)tion 
harged  in 
lating  liq- 
lis  court,' 
'taking  in 
»n  appeal, 
0  charged 

in  a  pre- 
ti  another 


form,  the  recognizance  must  state  the  offense  of  which  the  ap- 
pellant stands  indicted.  If  it  is  an  offense  eo  nomine,  it  is  sutfi- 
cient  to  so  recite.  If  not,  it  must  recite  all  the  constituent  ele- 
ments of  the  offense  in  the  recognizance.  This  has  not  been 
done,  and  it  is  fatally  defective."  It  appearing  from  an  inspec- 
tion of  the  record  before  us  that  the  condition  of  the  bail  bond 
upon  which  the  forfeiture  was  taken  states  that  the  appellant 
M.  L.  Loveless  "stands  charged  with  the  offense  of  unlawfullv 
selling  intoxicating  liquor,"  the  same  defect  exists  in  th(>  bull 
bond  in  this  case  as  existed  in  the  recognizance  in  the  case  cited 
above.  The  law  in  reference  to  recognizances  and  bail  bonds 
being  the  same,  we  hold  that  the  bail  bond  in  this  case  does  not 
comply  with  the  law  in  the  respect  indicated.  For  the  errors 
discussed,  the  judgment  of  flie  lower  court  is  reversed,  and  the 
cause  dismissed. 

Davidson,  P.  J.,  absent. 


State  v.  Mattiikws. 

148  Mo.  185—49  S.  W.  Rep.  1085. 

Decided  February  21,  1899. 

Self-dkfenre:    Murder  and  vianslaughter — Express   malice — Right  of 
attack  in  self-defense — Defense  of  property — Instructions. 

1.  One  who  kills  another  in  self-defense  is  not  guilty  of  murder, 

though  he  bore  express  malice  towards  deceased. 

2.  It   is  not  generally  true  that   the   right  of  self-defense   does  not 

imply  the  right  of  attack.  One  who  has  reasonable  ground  to  be- 
lieve that  another  intends  to  do  him  great  bodily  harm,  and  that 
such  design  will  be  accomplished,  need  not  wait  until  his  ad- 
versary gets  advantage  over  him,  but  may  immediately  kill  the 
latter,  if  necessary  to  avoid  the  danger. 

3.  The  fact  that  one  puts  himself  in  the  way  of  being  assaulted  by 

another,  though  he  expects  the  latter  will  attack  him,  does  not 
preclude  him  from  setting  up  self-defense. 

4.  Though  one  is  not  justified  in  killing  another  who  is  tearing  down 

and  carrying  away  a  fence  belonging  to  the  former,  such  killing 
is  nothing  more  than  manslaughter  in  the  fourth  degree,  if  done 
in  a  heat  of  passion  engendered  by  the  removal  of  the  fence. 

5.  Where  defendant  shot  deceased  while  the  latter  v.as  removing  .he 

former's  fence,  an  instruction  that  such  fact  did  not  justify  de- 


I  s  ■ 


11 


682 


AMERICAN  CUIMINAL  REPORTa 


i«, 


Ilii 


m 


■fi 


im 


LI* 


I; 


'1i 

|i; 

u 

ilM 

iJh 

1 

fendant  Is  misleading,  as  It  should  also  state  that,  If  the  killing 
was  done  In  the  heat  of  passion,  It  would  be  only  manslaughter. 
6.  The  fact  that  defendant  claims  that  the  killing  was  done  in  self- 
defense  does  not  destroy  the  right  to  an  instruction  based  on  the 
claim  that  the  killing  was  manslaughter. 

Appeal  from  Douglas  Circuit  Court;  Hon.  W.  N.  Evans, 
Jmlge.    Reversed  and  remanded. 

A.  II.  Livingston,  for  the  appellant, 

Edward  C.  Crow,  Atty.  Gen.,  and  Sam  B.  Jeffreys,  Asst 
Atty.  Gen.,  for  the  State. 

SiiKuwooD,  J.  Indicted  for  murder  in  the  first  degree  for 
killing  one  R.  11.  Morgan  with  a  shotgim  on  the  17th  of  April, 
189G,  defendant  being  put  upon  his  trial  was  found  guilty  of 
the  second  degree  of  that  offense,  and  his  punishment  assessed 
at  fourteen  years  in  the  penitentiary. 

This  homicide  grows  out  of  a  disputed  lino,  and  a  portion  of 
a  disputed  rock  fence,  which,  if  removed,  would  open  defend- 
ant's field  and  leave  it  unincloscd,  and  besides,  would  admit 
the  water  from  the  hillside  to  sweep  over  defendant's  field.  A 
lane  nuining  north  and  south  divided  the  two  fences  of  defend- 
ant and  of  Hammond,  that  of  defendant  lying  on  the  west  and 
Hammond's  on  the  east  of  that  lane,  which,  at  its  north  end, 
oi>ened  into  a  public  road  which  at  this  point  ran  west  on  the 
north  side  of  defendant's  field.  The  north  end  of  the  lane  ter- 
minated at  the  foot  of  a  steep  hill,  which  was  the  water-shed  of 
that  immediate  locality.  The  disputed  boundary  and  rock  lay 
between  the  northeast  and  the  northwest  corners  of  the  respect- 
ive fields.  Hammond  had  lived  on  his  farm  about  nineteen 
years  and  had  never,  so  far  as  it  appears,  had  any  difference  or 
difficulty  with  his  vis-a-vis  neighbor. 

Defendant,  forty-five  years  of  age,  had  lived  on  his  farm  some 
fifteen  years,  in  the  county  some  thirty  years,  had  been  con- 
stable and  justice  of  the  peace  some  ten  or  twelve  years,  and 
bore  an  excellent  reputation  for  being  a  peaceable  and  law-abid- 
ing citizen.  On  the  other  hand,  ^forgan,  who  had  lived  on  the 
farm  of  Hammond,  his  step-father,  for  the  space  of  about  a  year, 
and  had  rented  it,  it  seems,  for  the  year  1890,  had  the  reputa- 
tion, as  some  of  the  testimony  tends  to  show,  of  being  of  a  rash, 


STATE  V.  MATTHEWS. 


CS3 


r  the  killing 
islaughter. 
lone  in  self- 
)ased  on  the 


N.  Evans, 


reys,  Asst. 


dcgi'ce  for 
1  of  April, 
I  guilty  of 
it  assessed 

portion  of 
m  defend- 
uld  admit 
J  field.  A 
of  dcfend- 
i  west  and 
lorth  end, 
est  on  the 
3  lane  ter- 
er-slied  of 
I  rock  lay 
le  respeet- 
nineteen 
Ference  or 

arm  some 
been  con- 
ears,  and 
law-abid- 
ed on  the 
ut  a  3'ear, 
10  reputa- 
3f  a  rash, 


quarrelsome,  turbiilont  and  daiigcrnna  disposllion,  ^.f  whirli  de- 
fendant was  informed  prior  to  the  fatal  oc'ciutcik'c,  and  lie  hml 
been  warned  by  some  of  his  neighbors  to  be  on  his  giuir.l  against 
iforgan.  Indeed,  it  seems  .Morgan  had  conceived  a  strong  dis- 
like against  defendant,  and  had  made  serious  thivats  against 
him,  and  of  these  threats  defendant  had  been  told.  Alwiit  two 
weeks  before  the  homicide,  Morgan  had  gotten  into  nn  alterca- 
tion with  defendant's  youngest  son;  had  thrown  rocks  at  him, 
and  when  remonstrated  with  by  defendant  on  that  occasion  lui.l 
invited  defendant  out  of  his  field  ir.  order  to  beat  him,  savin-r 
to  the  latter  that  he  had  it  laid  up  for  him  and  intended  to  do 
him  np. 

Morgan  was  a  large,  stent  man  weighing  one  hundred  and 
seventy-five  to  one  hundred  and  ninety  pounds,  and  was  about 
thirty-eight  years  old.  Defendant  had  been  prosecuted  for  ob- 
structing the  public  road  at  the  northeast  conier  of  his  field, 
and  was  convicted  of  that  oflfense.  On  termination  of  this 
prosecution,  defendant,  under  the  direction  of  the  prosecuting 
attorney  and  sheriff  as  to  where  his  fence  should  be  erected,  had 
set  his  fence  back  on  his  line  as  it  was  ascertained  to  be  on  the 
trial  aforesaid,  and  he  built  this  portion  of  the  fence  of  rock  in 
order  to  prevent  his  field  being  flooded.  After  this  building 
of  his  fence  back  on  his  line,  defendant  was  repeatedly  annoyed 
by  ^forgan  throwing  his  fence  down,  when  defendant  woulil  re- 
build it.  This  process  of  rebuilding  had  just  been  completeil 
just  after  noon  of  the  day  of  the  homicide,  by  defendant  and 
two  or  three  of  his  nearest  neighbors.  In  the  afternoon,  a  pass- 
ing neighl)or  having  informed  .Mitrgan,  who  was  at  work  in  his 
field  plowing,  of  the  fence  being  replaced,  he  inuiiediately  quit 
his  v;ork,  sent  his  team  around  by  the  bottom  road,  went  by  his 
house  for  his  ax  and  pistol,  and  with  Hammond,  his  step-father, 
and  ^Irs.  Hammond,  his  mother,  he  went  to  where  the  roek  wall 
had  been  replaced,  taking  with  him  two  chains.  The  others  of 
the  family,  two  grown  women,  and  two  boys,  one  twelve  years 
and  the  other  younger,  all  went  to  what  was  termed  the  ''rock 
pile,"  as  the  rock  wall  at  the  locus  in  quo  was  called.  Arriving 
there,  they  all  went  to  work  tearing  down  defendant's  fence  and 
placing  the  rock  thus  obtained  on  that  of  Ilanunond.  Defend- 
ant was  in  his  field  cutting  sprouts;  his  son,  who  was  in  the 


084 


AMERICAN  CRIMINAL  REPORT^. 


it 


i    'i 


V'! 


field  also  and  plowing,  but  soiurwliat  nearer  to  tlie  rock  wall 
than  Ilia  father,  saw  Morgan  and  called  his  father's  attention 
to  it,  whereupon  defendant,  looking  up,  saw  Morgan  coining 
<lown  th(>  hill  toward  the  rock  wall,  at  a  hri'^k  walk  or  r\in.  llo 
had  on  \\\a  arm  an  nx,  and  d(>fend«nt  thought  he  saw  him  havo 
also  a  pistol.  J?ehind  Mnrgan  were  his  st(>p-father  and  mother. 
Def(>ndant  also  noticed  the  others  of  the  party  proceeding  to  tho 
same  iM)int  with  horses,  etc.  Thinking  it  prudent  to  do  so,  d(^ 
fendant  went  to  his  hotise  and  got  a  shotgun  and  returned  to 
tlie  field  and  went  towards  the  fence  where  ^I organ  and  tho 
others  were  tearing  defemlant's  fence  down,  ai'  »hen  defend- 
ant got  williin  ahout  thirty  steps  of  him  wher  '  were  tear- 
ing the  fence  down,  Morgan  said  to  him:  "Don't  como  any 
closer."  Defendant  told  him  to  gf)  away  and  not  disturb  his 
fence,  wlu'n  ^forgan  replied  with  foul  and  abusive  language. 

Whether  defendant  had  his  gun  presented  at  ^forgan  at  tho 
time  or  not  is  the  subject  of  conflicting  evidence.  Some  of  tho 
testimony  shows  that  it  was  tlnis  carried ;  other  that  defendant 
merely  carried  it  in  his  hands,  and  other  still,  that  it  was  on  his 
shoulder.  After  testifying  as  above  stated,  with  regard  to  what 
!Morgan  said  to  him,  defendant  continued:  "I  kept  insisting 
that  !^r<»rgan  get  away,  that  I  didn't  want  any  trouble  with 
him,  and  that  that  was  my  fence,  and  he  very  well  knew  tho 
court  had  so  decided,  and,  if  he  thought  it  wasn't,  to  go  into 
court,  and  when  the  court  decided  it  was  his,  he  should  have  it, 
and  not  until  then.  He  kept  on  abusing  me,  and  then  he  had  a 
pistol;  the  fii*st  T  saw  of  it  he  was  behin<l  tlio  wall  from  me,  and 
he  kind  of  scooted  down  by  the  side  of  the  tree,  and  I  could  just 
see  the  pistol  and  a  little  side  of  his  face,  and  when  he  did  that 
I  turned  and  walked  a  few  steps  right  around  towards  the  lane; 
I  was  out  from  the  lane  a  little  ways,  and  abcnit  that  time  his 
mother  came  out  and  commenced  qmirreling  at  me,  and  I  said 
to  the  old  lady,  *I  didn't  come  over  here  to  quarrel  with  women, 
it  would  look  better  if  you  were  at  the  house.'  I  told  her  I 
didn't  come  to  quarrel  with  the  old  lady,  and  it  would  look  bet- 
ter if  she  was  at  the  hoiise,  and  I  happened  to  think  of  myself 
again,  that  it  was  perhaps  done  to  draw  my  attention,  and  when 
I  i.otieed  !\rorgan  again  he  was  up  and  a  few  feet  from  the  tree, 
and  I  says  again,  'Go  away  and  don't  tear  my  fence  down,  and 


('  Vdck  wnll 
'u  nttciititiii 
gim  coming 
)r  run.  llo 
w  him  Imvo 
)ii(l  motlior. 
p<liiig  to  tlio 

0  do  so,  (1(>- 
rotiinicd  to 
nn  nn<l  tho 
lien  iK't'cnd- 
'  vvoro  tenr- 
t  oomo  any 

disturb  liia 
uigungp. 
rgau  at  the 
v)ino  of  tho 
t  dofondant 
t  was  on  his 
ard  to  what 
)t  insisting 
oublo  with 

1  know  the 
to  go  into 

iild  have  it, 
?n  lie  had  a 
)ni  mo,  and 
'  oonM  jnst 
ho  did  that 
3  tho  lane ; 
at  time  his 
and  J  said 
ith  women, 
tohl  her  I 
kl  lf)ok  bot- 
:  of  myself 
, and  when 
m  tho  tree, 
down,  and 


STATE  r.  MATTIIKWS. 


06 :. 


don't  abuse  mo  any  more.  1  mean  wlmi  1  say.'  1  dun'l  think 
I  can  repeat  tho  language  cxnt'tly  tlmi  1  used,  aiid  he  stcipr.l 
down  and  threw  some  rock  fnmi  ilic  wall  and  \vhiilc(l  anmiid  in 
that  position  (indicating),  and  lliat  was  the  time  th,.  ..u,,  l 
guess,  fired  very  quickly.  I  was  a  soniliwc^-t  dinctinn  t'n.ni 
.Mr.  Morgan,  and  he  reached  over  jn*i  in  this  pusitimi  and 
jerked  some  rock  on,  and  as  he  raised  iij)  he  threw  hinisclt'  in 
that  position,  and  1  thought  he  was  going  to  draw  his  pi<f(il ; 
then  1  tired.  I  thougiit  he  was  going  to  draw  his  |)i>tnl.  JIc 
was  not  over  four  or  live  feet  from  where  he  prest-nteil  the  pis- 
tol at  me." 

Tln're  was  (tther  testimony  tending  to  show  that  defendant 
threatened  to  ■<hoot  Morgan  in  case  he  did  not  (piit  rcnioving 
the  rock,  and  tluit  -Morgan  had  his  team  attached  tn  a  stnnc  and 
liad  just  started  to  drive  the  team  otf,  when  dct'cmlant  tired; 
that  the  exact  words  used  by  defendant  to  ^lorgan  at  that  mo- 
ment were:  "Damn  you,  if  you  m<tve  that  I  will  shoot  you," 

and  ^lorgan  answered:  "You  kiss  my  a ,  you  cowardly  son- 

of-a  1) ,"  and  started  his  team,  and  that  Avitncss  did  not  see 

^forgan  have  a  pistol.  Tho  testimony  of  some  of  the  witnesses 
corroborates  that  of  defendant,  and  that  of  others  is  of  a  con- 
trary effect. 

The  alK)ve  statement  affords  a  sufficient  outline  of  the  evi- 
dence to  enable  the  law  to  be  correctly  ap[)lied  to  the  facts  thus 
recited.  Proper  instructions  were  given  on  the  question  of  nnu'- 
<ler  in  the  first  and  secoiul  degrees  and  they  followed  the  usual 
formula.  If  defendant  killed  Morgan  with  express  malice,  he 
wt)uld  be  guilty  of  murder  in  the  first  degree,  but  this  remark 
is,  however,  to  be  qualified  by  this  observation:  that  even  if 
defendant  did  kill  ^lorgan  with  express  malice,  yet  if  he  did  so 
in  his  necessary  self-defense,  it  would  not  be  murdcn-  though 
defendant  bore  express  malice.  Slate  v.  liopp,  142  ^lo.,  lac.  cU. 
447,  44S. 

Itelative  to  the  question  of  self-defense,  instruction  17  ex- 
liibits  the  insignia  of  that  heresy  which  has  so  warped  "the  first 
law  of  nature"  in  this  State  that  the  original  commentator 
thereon  would  not  know  that  subject  were  he  to  encounter  it  in 
his  pathway.  In  the  first  place,  it  is  not  generally  true  that  "the 
right  of  self-defense  does  not  imply  the  right  of  attack."    This 


• 


686 


AMERICAN  CRIMINAL  REPORTS. 


•"W 


*i 


mi 


It? 


is  something  which  depends  upon  the  circumstances  of  each  in- 
dividual case.  A  person  about  to  be  attacked  is  not  bound  to 
wait  until  his  adversary  gets  **the  drop  on  him"  or  "draws  a 
bead  on  him,"  to  use  familiar  but  significant  expressions,  before 
he  takes  steps  to  prevent  those  occurrences  from  taking  place. 

As  was  aptly  said  by  Wagner,  J.,  in  Slate  v.  Sloan,  47  Mo. 
(512:  "AVhen  a  person  apprehends  that  some  one  is  about  to  do 
him  great  bodily  hann,  and  there  is  reasonable  ground  for  be- 
lieving the  danger  imminent  that  such  design  will  be  accom- 
plished, he  may  safely  act  upon  appearances,  and  even  kill  the 
assailant  if  that  be  necessary  to  avoid  the  apprehended  danger; 
and  the  killing  will  be  justifiable,  although  it  may  afterward 
turn  out  that  the  apix^arances  were  false,  and  there  was,  in  fact, 
neither  design  to  do  him  serioiis  injury  nor  danger  that  it 
would  be  done.  lie  must  decide  at  his  peril  upon  the  force  of 
the  circiimstanees  in  which  he  is  placed,  for  that  is  a  matter 
which  will  be  subject  to  judicial  review.  But  he  will  not  act 
at  his  peril  of  making  that  guilt,  if  appearances  prove  false 
which  Avould  be  innocence,  had  they  proved  true." 

Xor  is  it  true  that  a  party  who  expects  to  be  attacked  has  no 
right  "to  put  himself  in  the  way  of  being  assaulted,"  etc.  So 
long  as  defendant  did  no  overt  act  towards  ]\[organ  he  had  a 
perfect  right  to  go  where  he  would,  and  the  expectation  of  being 
assaulted  cuts  no  figure  in  the  case.  State  v.  Evans,  124  Mo., 
loc.  cit.  410,  411. 

Besides,  defendant  was  on  his  owti  terra  firtna,  and  being 
there  had  the  right  to  repel  with  force  the  removal  of  his  fence, 
as  this  was  a  forcible  trespass,  and  an  invasion  of  his  property 
rights.  But  he  had  no  right  to  kill  ^[organ  because  the  latter 
tore  down  his  fence,  or  carried  it  off,  and  his  act  in  killing 
^iforgan,  unless  done  on  the  ground  of  self-defense,  was  not  jus- 
tifiable or  excusable,  but  still  it  was  not  murder  unless  done  with 
express  malice. 

On  this  subject  Hawkins  says:  "Xeither  can  a  man  justify 
the  killing  another  in  defense  of  his  house  or  goods,  or  even  of 
his  person,  from  a  bare  private  trespass;. and  therefore  ho  that 
kills  another,  who  claiming  a  title  to  his  house,  attempts  to 
enter  it  by  force,  and  shoots  at  it,  or  that  breaks  open  his  win- 
dows in  order  to  arrest  him,  or  that  persists  in  breaking  his 


■xt'  U '■ 


T 


3  of  eacli  in- 
lot  bound  to 
or  "draws  a 
sions,  before 
ing  pliico, 
oan,  47  j\[o, 
about  to  do 
)und  for  be- 
1  be  accoin- 
sven  kill  tlie 
Jed  danger; 
y  afterward 
ivas,  in  fact, 
iger  tbat  it 
tbo  force  of 
is  a  matter 
will  not  act 
prove  false 

eked  has  no 
1,"  etc.  So 
n  he  had  a 
Ion  of  being 
s,  124  Mo., 

and  being 
if  his  fence, 
lis  property 
e  the  latter 
;  in  killing 
vas  not  jus- 
s  done  with 

nan  justify 
or  even  of 
ore  ho  that 
ittempts  to 
en  his  win- 
feaking  his 


STATE  V.  MATTHEWS. 


CS7 


hedges  after  he  is  forbidden,  is  guilty  of  man.lai,o.htoi. "     l 
Hawkins  P.  C.  (Gth  ed.),  ch.  28,  sec.  23,  p.  108. 

And  certainly  the  same  rule  would  apply  to  tearing  down  a 
rock  fence  as  would  apply  to  breaking  a  hedge.  Wharton  s-iv.  • 
"We  may  here  repeat  that  it  is  murder  for  A.  to  deliboratl-lv 
kill  B.  for  merely  trespassing  on  A.'s  propertv,  A.  at  the  time 
knowing  that  only  a  mere  trespass  was  intended.  The  same  rule 
applies,  mutatis  mutandis,  to  the  vindication  of  the  ri-dit  t,, 
personal  property.  If  the  killing  of  the  trespasser  in  eitluu-  c-n.e 
take  place  in  the  passion  and  heat  of  blood,  the  killing  i=?  man- 
slaughter, but  unless  it  be  in  resisting  robbery,  it  is  not  justili- 
able.  .  .  .  On  the  other  hand,  when  the  defendant  Mas  not 
himself  the  aggressor,  but  was  defending  his  own  propertv  from 
an  assailant,  he  has  a  right  to  use  as  much  force  as  is  necessary 
to  prevent  its  forcible  illegal  removal,  or  his  exclusion  from  its 
use.  It  is  true  that  v  lien  the  wrong  is  slight,  or  can  be  other- 
wise prevented  or  redressed,  a  cool  and  deliberate  killing  of  a 
trespasser  is  murder.  But  the  question  is  mainlv.  Is  an\^ssen- 
ticl  right  of  the  party  forcibly  assailed?  If  30,^0  is  entitled, 
in  the  absence  of  adequate  legal  remedy,  to  use  such  force  as  is 
necesoary  to  repel  the  attack."  1  Wliart.  Cr.  L.  (Otli  ed  )  sees 
500,  501. 

These  remarks  of  the  leanied  author  are  fully  supported  by 
the  case  of  People  v.  Dami,  53  :Mich.  40O.  In  that  case  an  at- 
tempt was  made  to  seize  wheat  in  the  defendant's  custody;  he 
resisted  the  attempted  seizure,  and  emphasized  that  resistance 
with  a  loaded  pistol  Being  convicted  of  an  assault  with  intent 
to  murder  Wilson,  who  attempted  to  seize  the  wheat  and  who 
also  had  a  pistol,  he  appealed  to  the  Supreme  Court,  and  that 
court  said:  "Defendant  was  the  o\nier  and  in  possession  of  tlie 
farm,  and  Mrs.  Layman  of  the  wheat,  and  he  acted  for  her  in 
caring  for  it,  and  he  had  a  right  to  defend  this  property  against 
the  encroachments  by  Wilson,  and  use  so  much  force  as  was 
necessary  for  that  purpose.  It  needs  no  citation  of  authorities 
to  maintain  this  elementary  princijile  of  the  law.  A  man  is 
not  obliged  to  abandon  his  farm,  his  home  or  his  goods  to  a 
trespasser  or  inti'uder  unless  he  voluntarily  chooses  so  to  do. 
...  It  further  appears  that,  having  this  right  to  protect  the 
property,  the  defendant,  while  in  his  efforts  to  assert  and  maiu- 


688 


AMERICAN  CRIMINAL  REPORTS. 


tain  it,  was  confronted  by  a  concoaleil  weapon  used  by  Wilson 
against  him,  and  in  making  his  defense  against  this  attack 
used  his  own  pistoh  This  lie  had  the  right  to  do  if  he  feared, 
and  had  good  cause  to  fear,  his  life  was  in  danger.  .  .  . 
Upon  the  People's  own  showing  in  this  csoc,  had  death  resulted, 
the  defendant  would  have  been  guilty  of  no  more  than  man- 
slaughter, and  under  all  the  circumstances  a  new  trial  would  bo 
necessary.  The  judgment  of  conviction  must  be  reversed  and 
the  respondent  discharged."  See,  also,  1  Whart,  Cr.  L,,  see. 
100;  Commonweallh  v.  Kcnnanl,  8  Pick.  133;  Comnionweallh 
V.  Fairer,  7  Met.  590;  Beard  v.  United  States,  158  U.  S.  550; 
1  Hale,  P.  C.  485,  480 ;  People  v.  Payne,  8  Cal.  341. 

Bishop,  when  speaking  of  cases  represented  by  Common- 
wealth V.  Drew,  4  Mass.  31)1,  says:  "The  doctrine  that  passion 
excited  by  trespass  to  property  can  never  I'educe  the  killing  with 
a  deadly  weajjon  to  manslaughter,  is  too  hard  for  huuuni  nature ; 
and  though  stated  many  times  in  the  books,  is  not  sufficiently 
founded  in  actual  adjudication  to  l)e  received  without  further 
examination.  For  surely,  though  a  man  is  not  so  quickly  ex- 
cited by  an  attack  on  his  property  as  on  his  |)erson,  and  there- 
fore the  two  cases  are  not  on  precisely  the  same  foundation,  yet 
since  he  has  the  right  to  defeiul  his  i)roperty  by  all  means  short 
of  taking  human  life,  if  in  the  heat  of  passion  arising  in  a  law- 
ful defense  he  seizes  a  deadly  weapon  and  with  it  unfortunately 
kills  the  aggressor,  every  principle  which  in  other  cases  dictates 
the  reduction  of  the  crime  to  the  mitigated  form  requires  the 
same  in  this  case."    2  Bishop,  Xew  Cr.,Law,  note,  sec.  700. 

From  these  premises  it  should  be  concluded  that  instructions 
15  and  23,  given  of  the  court's  own  motion,  were  erroneous. 
The\'  are  the  following: 

15.  "Although  you  may  believe  from  the  evidence  that  de- 
ceased was  removing  a  stone  fence  belonging  to  defendant  at  the 
time  he  was  shot,  that  would  not  justify  or  excuse  him"  (de- 
fendant). 

23.  "The  defendant  had  a  right  to  arm  himself  and  go  to 
any  part  of  his  own  premises  and  forbid  trespass  thereon,  but, 
as  before  instnicted,  had  no  right  to  shoot  deceased  merely  for 
removing  stone  defendant  claimed  to  be  his  or  on  his  premises." 

The  error  in  these  instructions  consists  in  this:  that  thev  do 


STATE  V.  MATTHEWS. 


689 


by  Wilson 
this  attack 
;  he  feared, 

■  ^  •         •        •         • 

th  resulted, 
than  man- 
nl  would  bo 
'Versed  and 
?r.  L.,  see. 
imoniceallh 
U.  S.  550; 

■  Common- 
hat  passion 
ailing  with 
lan  nature; 
suffioientlv 
3iit  further 
quickly  ex- 

and  there- 
idation,  yet 
neans  short 
g  in  a  law- 
fortnnately 
ses  dictates 
equires  the 
c.  706.  . 
nstructions 

erroneous. 

CO  that  de- 
dant  at  the 
him"  (de- 

and  go  to 
ereon,  but, 
merely  f<ir 
premises," 
uit  thev  do 


not  go  far  enough,  and  are  therefore  to  that  extcr.t  erronoous 
and  misL-ading.  Because  while  it  was  true  that  defendant  wag 
not  excused  or  jusliflcd  in  shooting  ]\lorgini  f,.r  takin-  away 
stone  which  inclosed  defendant's  field  or  wliioh  belonged  to  de- 
fendant, and  Avere  used  by  hini  to  prevent  his  field  fn.ni  bein- 
flooded,  yet  it  was  also  true  that  if  liot  blood  was  euov„dore.l  in 
defendant  by  seeing  his  fence  or  wall  thus  removed,^  he  was  not 
giiilty  of  a  higher  degree  of  offense  than  nianslaugbter  in  the 
fourth  degree;  and  these  instructions  should  have  been  enlarged 
so  as  to  embrace  that  point.  And  it  is  not  the  law  that  self- 
defense  may  not  co-exist  with  a  right  to  have  an  instruction 
given,  based  upon  manslaughter  in  the  fourth  degree. 

Therefore  judgment  reversed  and  cause  remanded.    All  con- 
cur. 

Note  (by  H.  C.  G.). —Another  strong  fence-defending  case,  somewhat 
similar,  Is  the  late  one  of  Sims  v.  The  State,  38  Tex.  Cr.  R.  637,  44 
S.  W.  Rep.  522  (1898).  Sims  managed  a  ranch  for  Clark  adjacent  to 
Poster's  (deceased),  and  Clark  or  his  grantors  had  built  a  fence  there 
some  years  before.  Lately,  Foster  claimed  that  the  fence  was  on  his 
land,  of  the  use  of  which  he  was  being  deprived.  He  was  told  that  If 
he  thought  the  land  was  his,  he  ought  to  bring  a  suit  at  law  for  it; 
but  he  persisted  in  making  threats  that  he  would  remove  the  fence. 
Clark  wrote  to  Sims  to  firmly  hold  the  fence.  Foster  sent  men  to  dig 
post-holes  on  Clark's  premises,  and  Sims  ordered  them  away.  A  few 
days  afterwards  Foster  came  with  three  or  four  men  to  remove  the 
fence,  carrying  a  double-barreled  shotgun.  Sims  advised  Foster  and 
his  men  to  desist,  telling  them  that  he  could  not  permit  the  removal 
of  the  fence.  Foster  ordered  his  men  to  tear  down  the  fence,  and,  lay- 
ing his  shotgun  in  front  of  him,  tackled  the  fence.  Sims,  having  a 
pistol,  shot  him.  The  prosecutor  sought  to  impair  Clark's  title  by 
complications,  and  concessions  by  a  grantee  of  Clark's,  etc.,  all  of 
which  was  held  to  be  immaterial;  but  that,  in  any  event,  Clark  was  in 
actual  possession,  and  was  entitled  to  defend  against  even  a  grantee's 
aggressions,  while  that  right  existed,  and  Sims  stood  in  his  place;  and 
further,  Sims  did  not  know  of  these  complicaMons.  The  court  errone- 
ously Instructed  the  jury  to  consider  the  question  of  title  as  bearing 
upon  defendant's  good  faith,  etc.;  and  also  that  if  defendant  once 
abandoned  his  possession,  he  could  not  justify  himself  in  slaying  his 
adversary  in  defense  of  that  possession,  which  was  held  to  be  outside 
of  the  case. 

In  reviewing  the  case  the  court  said:  "Appellant  did  not  ni.ve  to 
wait  until  his  adversaries  had  gotten  him  in  their  power  or  placed 
him  hors  du  combat.  The  only  criterion  which  the  law  erects  is,  if  he 
was  not  able  to  prevent  them  destroying  his  property  and  taking  pos- 
session of  his  land  by  other  means  than  slaying,  he  had  a  right  to 
Vol.  XI  — 44 


N: 


n 


m 


:iii 


r;:'  h 


I 


690 


AMERICAN  CRIMINAL  REPORTS. 


m  i' 


slay.  Now,  what  other  means  should  he  have  resorted  to?  Not  until 
he  had  entreated  and  protested  without  avail,  and  when  his  adversary, 
either  with  his  shotgun  then  drawn  and  presented  (according  to  the 
defendant's  testimony),  or  within  easy  reach,  began  the  work  of  de- 
struction, coupled  with  the  contemptuous  remark,  "You  would  not 
hurt  a  fly,"  did  appellant  undertake  to  act.  Of  course,  if  there  were 
other  means  then  present,  of  which  he  might  have  availed  himself,  to 
prevent  the  destruction  of  his  property  and  the  taking  possession  of 
his  land,  the  law  required  him  to  adopt  such  means,  and  only  in  the 
contingency  of  his  failure  to  resort  to  other  reasonable  means  would 
he  be  amenable  to  the  law.  After  a  careful  review  of  this  testimony, 
it  occurs  to  us  that,  if  he  had  resorted  to  other  means  than  that  which 
was  adopted  by  him,  he  would  have  given  his  adversary  an  undue  ad- 
vantage, and  he  would  not  only  have  failed  in  the  protection  of  his 
property,  but  would  have  sacrificed  his  own  life.  The  overt  act  had 
already  been  committed,  and  in  the  emergency  he  was  authorized  to 
act,  both  to  prevent  the  destruction  of  his  property  and  to  save  his 
own  life." 


People  v.  Scott. 

123  Cal.  434—56  Pac.  Rep.  102. 

Decided  January  31,  1899. 

Self-defense:  Manslaughter  —  Challenge  to  jurors  —  Actual  bias- 
dining  combat — Reasonable  doubt — Instructions. 


■De- 


1.  A  challenge  to  a  trial  juror  in  a  criminal  case  for  actual  bias  can 

only  be  reviewed  upon  appeal  when  the  question  presented  is  one 
of  law;  and  the  action  of  the  trial  court  upon  such  challenge  will 
not  be  reviewed  where  the  question  is  one  of  fact,  or  of  con- 
flicting statements,  or  where  the  evidence  would  justify  a  finding 
either  way.  ["But  because  of  the  attendant  difficulty,  the  judge 
should  be  more  careful  to  see  that  the  jurors  are  in  fact  un- 
prejudiced and  unbiased."] 

2.  An  Instruction  to  the  effect  that  a  defendant  charged  with  murder 

cannot  be  acquitted  upon  his  plea  of  self-defense  unless  the  jury 
"believe,"  from  the  evidence,  that  at  the  time  of  firing  the  fatal 
shot  the  defendant  honestly  believed  that  his  life  was  in  danger, 
and  that  he  was  about  to  receive  great  bodily  Injury  from  the 
deceased,  is  erroneous,  as  eliminating  the  right  of  the  defendant 
to  an  acquittal  if  the  evidence  created  a  reasonable  doubt  as  to 
whether  he  acted  in  self-defense. 

3.  An  instruction  to  the  effect  that  if  the  deceased  was  the  first  ag- 

gressor, and  had  honestly  and  in  good  faith  endeavored  to  de- 
cline further  struggle  before  the  fatal  shot  was  fired,  there  was 
no  self-defense,  is  erroneous  in  falling  to  recognize  that  the  ag- 
gressor must  make  known  his  declination  to  his  adversary. 


PEOPLE  i\  SCOTT. 


691 


Not  until. 
I  adversary, 
ding  to  the 
work  of  de- 
would   not 
there  were 
himself,  to 
)ssesslon  of 
only  in  the 
eans  would 
I  testimony, 
that  which 
1  undue  ad- 
lion  of  his 
ert  act  had 
ithorized  to 
to  save  his 


bias  —  De- 
al bias  can 
nted  is  one 
illenge  will 

or  of  con- 
'y  a  finding 
,  the  judge 
in  fact  un- 

ith  murder 
ss  the  jury 
g  the  fatal 
in  danger, 
y  from  the 
i  defendant 
loubt  as  to 

he  first  ag- 
ored  to  de- 
,  there  was 
bat  the  ag- 
irsary. 


Appeal  from  a  judgment  of  the  Superior  Court  of  Ivorn 
County,  and  from  an  order  denying  a  new  trial ;  J.  W.  Malion, 
Judge. 

The  facts  are  stated  in  the  opinion  of  the  court. 

J.  W.  Aheiii,  Ahem  cD  Bennett,  Laird  tC-  Packard,  and  IF.  .1. 
Harris,  for  appellant. 

W.  F.  Fitzgerald,  Attorney-General,  and  G.  N.  Pod,  Deputy 
Attorney-General,  for  respondent. 

IIp:xsiiaw,  J.  The  defendant,  informed  against  for  the  crime 
of  murder,  was  convicted  of  manslaughter  and  ai)poals  from  the 
judgment  and  from  the  order  denying  hiui  a  new  trial. 

Objection  is  first  made  to  the  court's  disallowance  of  chal- 
lenges for  actual  bias,  interposed  by  defendant  to  two  of  tlie 
jurors.  While  this  court  may  review  an  order  denying  a  chal- 
lenge to  a  juror  upon  this  ground,  it  may  do  so  only  when  the 
question  presented  is  one  of  law,  over  which  questions  alone 
this  court  in  criminal  cases  has  appellate  jm-isdiction  under  the 
constitution.  A  reading  of  the  testimony  taken  upon  voir  dire 
discloses,  as  is  usual,  conflicting  and  contradictory  statements 
by  the  jurors.  They  had  formed  opinions  touching  the  guilt  or 
innocence  of  the  defendant.  They  would  carry  those  opinions 
with  them  into  the  jury  box.  It  would  take  evidence  to  remove 
them,  nevertheless  they  could  and  would  give  to  the  defendant  a 
fair  and  impartial  trial.  They  could  and  would  be  governed  by 
the  law  as  delivered  by  the  court,  and  by  the  evidence  as  received 
in  court.  It  is  the  state  of  facts  conunonly  presented  where 
upon  the  question  of  bias  the  evidence  w^ould  have  justified  a 
finding  either  Avay.  Under  such  circumstances  we  are  power- 
less to  disturb  the  ruling  of  the  trial  court.  People  v.  Fred- 
ericks, 106  Cal.  534.  We  recognize  that  with  the  increased 
facilities  for  the  dissemination  of  news,  it  is  far  more  difficult 
than  formerly  it  was,  to  obtain  a  jury  of  men  ignorant  of  the 
circumstances  of  the  charge  which  they  are  called  upon  to  try. 
But  because  of  the  attendant  difficulty  the  judge  should  be  the 
more  careful  to  see  that  the  jurors  are  in  fact  unprejudiced  and 
unbiased,  for  it  is  as  much  a  defendant's  right  to-day,  to  be 
tried  by  such  a  jury,  as  it  was  when  Lord  Coke  delivered  his 
now  famous  aphorism  that  a  juror  "should  stand  indifferent  as 


&iC 


B 


Ml 


r 


092 


AMERICAN  CRIMINAL  REPORTS. 


he  stands  unsworn."  But,  unless  the  testimony  adduced  upon 
voir  dire  is  so  clear  upon  the  (pxestion  of  actual  bias,  that  this 
court  can  say  as  matter  of  law  that  the  juror  is  disqualified  for 
that  reason,  we  caimot  disturb  the  ruling  of  the  trial  court. 

Certain  objections  are  urged  to  the  court's  rulings  in  admit- 
ting and  rejecting  evidence.  We  have  examined  them  and  are 
convinced  after  such  examination  that  the  rulings  were  not  er- 
roneous, nor  to  the  prejudice  of  the  defendant  But  upon  the 
instructions  given,  the  court  fall  into  errors  which  necessitates 
a  reversal  of  the  judgment. 

The  jury  was  instructed :  ''Before  you  can  acqu.it  the  defend- 
ant upon  the  ground  of  self-defense  you  must  believe  from  the 
evidence  that  at  the  time  of  the  firing  of  the  fatal  shot  (if  you 
find  that  the  fatal  shot  was  fired  by  defendant)  that  the  defend- 
ant honestly  believed  that  his  life  was  in  danger  and  that  he 
was  about  to  receive  great  bodily  injury  from  the  deceased." 
By  this  the  jury  was  instructed,  that  the  defendant  could  not 
be  acquitted  upon  his  plea  of  self-defense,  unless  the  jury  be- 
lieved from  the  evidence  certain  facts;  but  this  eliminates  to 
defendant's  great  disadvantage  his  right  to  an  acquittal,  if  the 
evidence,  even  though  the  jiirors  did  not  believe  it,  yet  created 
within  their  minds  a  reasonable  doubt  as  to  whether  or  not  ho 
had  acted  in  self-defense.  Even  without  the  belief,  if  that  doubt 
existed,  the  defendant  was  entitled  to  an  acquittal. 

Again,  the  court  instructed  the  jury  as  follows:  "If  you  be- 
lieve from  the  evidence  beyond  a  reasonable  doubt,  that  the  de- 
fendant and  Charles  Richards  engaged  in  an  altercation  at  or 
near  Scott's  tent,  and  that  in  said  altercation  the  defendant  was 
the  aggressor,  or  even  if  you  believe  from  said  evidence  that  the 
<leceased,  Biehards,  was  the  aggressor;  and  if  you  further  be- 
lieve from  said  evidence  beyond  a  reasonable  doubt,  that  said 
Richards  had  honestly  and  in  good  faith  endeavored  to  decline 
any  further  trouble  before  the  fatal  shot  was  fired,  then  I  in- 
stmct  you  that  the  evidence  shows  no  self-defense."  This  in- 
struction, too,  was  ei'-oneous  and  prejudicial  to  the  defendant, 
in  that  it  failed  to  recognize  the  proposition  that  the  first  ag- 
gressor nuist  not  only  decline  further  strife,  but  must  make 
known  his  declination  to  his  adversary.  See  People  v.  Button, 
lOG  Cah  628;  People  v.  Ilecker,  109  Cal.  451. 


iced  upon 
that  this 

ulifiod  for 

>urt. 

in  admit- 

n  and  are 

ro  not  cr- 
npon  the 

x'cssitates 

le  dofpnd- 
froni  the 
)t  (if  you 
le  defend- 
d  that  lie 
leccascd." 
could  not 
)  jury  be- 
linatos  to 
tal,  if  the 
ct  created 
or  not  he 
hat  doubt 

[f  you  be- 
at  the  de- 
tion  at  or 
idant  was 
e  that  the 
irthor  be- 
that  said 
to  decline 
hen  I  in- 
This  in- 
efendant, 
?  first  ag- 
ust  make 
;.  Button, 


PEOPLE  V.  SCOTT. 


693 


Wo  note  no  other  alleged  errors  that  call  f..r  a  =;pcoial  con- 
sideration, but  for  the  roas-ms  given,  tlio  jiulgiuout  and  order 
are  reversed  and  the  cause  remaiidod. 

McFakland,  J.,  and  TcirrLE,  J.,  concurred. 

Note  (by  H.  C.  GO.-SKr.F-DKi-KxsE:  In  Jones  v.  State,  120  Ala  383 
25  So.  Rep.  25  (1899),  the  following  clause  appears:  "The  court  in  its 
oral  charge  said  to  the  jury:  'Self-delense  Is  the  defense  in  seventv- 
five  or  perhaps  eighty  or  ninety  per  cent,  of  the  cases  in  this  country ' 
This  appears  as  an  independent  charge.  In  what  connection  with  any 
other  part  of  the  oral  charge  It  was  given  does  not  appear.  Its  logical 
and  Inevitable  effect  was  to  prejudice  the  minds  of  the  jury  against 
the  defense  the  defendant  was  making  to  the  charge  against  him,  and 
it  should  not  have  been  given." 

Threats  tvithout  overt  acts— It  was  held  in  Wright  v.  State,  40  Tex. 
Cr.  Rep.  447.  50  S.  W.  Rep.  940  (1899),  that  defendant  could  not  shield 
himself  behind  the  claim  that  he  feared  the  deceased,  who  had  as- 
saulted him  and  made  violent  threats,  when  at  the  time  of  the  homi- 
cide the  deceased  was  otherwise  engaged,  and  made  no  demonstration 
against  him,  and  did  not  seem  to  know  that  the  defendant  had  ap- 
proached him  with  a  gun.  Threats,  to  justify  a  reasonai)le  apprehen- 
sion of  imminent  danger,  should  be  accompanied  by  overt  acts  of  some 
kind,  indicating  an  intention  to  execute  the  threats. 

Voluntarily  entering  into  a  combat  does  not  abrogate  the  right  of 
self-defense;  neither  does  express  malice.— In  State  v.Rapp,  142  Mo.  443 
(1898),  on  a  trial  for  assault  with  intent,  etc.,  it  was  held  to  be  error 
to  negative  an  ordinary  instruction  on  self-defense  by  tacking  onto  it 
the  condition  that  defendants  should  not  have  the  benefit  of  it  if  the 
jury  found  that  they  "voluntarily  entered  into  the  difficulty." 

And  also  error  to  instruct  that,  even  though  the  prosecuting  witness 
was  the  first  to  bring  on  the  difficulty,  yet,  if  the  defendants  "volun- 
tarily" entered  Into  it,  they  cannot  be  acquitted  on  the  ground  of  self- 
defense,  no  matter  how  great  and  imminent  the  danger.  The  court  ob- 
served that  self-defense  is  an  a/firmative,  positive,  intentional  act,  and 
necessarily  is  voluntary.  That  "voluntarily  entering  into  a  difficulty" 
is  not  an  ingredient  in  any  case  whatever.  That  if  the  right  of  self- 
defense  existed,  it  was  wholly  immaterial  whether  its  exercise  was 
voluntary  or  involuntary.  That  existing  the  right,  the  animus  was 
immaterial.  That  even  though  a  defendant  entertained  the  most  ex- 
press malice  toward  his  assailnnt,  yet,  if  the  facts  showed  that  he 
acted  in  self-defense  to  save  his  own  life,  his  malice  should  not  be 
taken  into  account.  He  has  only  exercised  his  legal  right.  (Citing 
2  Bish.  New  Crim.  Law,  sees.  37  and  71fi;  Whart.  Crim.  Law  (9th  ed.), 
sec.  98;  Golden  v.  State,  25  Ga.  532;  Partlow's  Case,  90  Mo;  008;  State 
V.  Gilmore,  95  Mo.  554.) 

Instructions  on   self-defense. — In  the  case  of  McCronj  p.  State,  re- 
ported in  25  So.  Rep.  C71,  the  court  instructed  the  jury  as  follows: 
"(2)  The  court  charges  the  jury,  by  the  State,  if  they  believe  from 


1 


'•^1 ! 


1!'^' 


C94 


AMERICAN  CRIMINAL  REPORTa 


the  evidence  beyond  a  reasonable  doubt  that  the  defendant,  after  shoot- 
ing deceased  with  his  pistol,  thereby  disabling  him,  and  while  in  no 
danger,  real  or  apparent,  of  any  harm  at  the  hands  of  the  deceased, 
he  took  a  shotgun  from  the  child  of  deceased,  and  pursued  deceased 
and  maliciously  shot  him,  and  after  knoclting  him  down  with  the  gun, 
and  while  deceased  was  down,  brained  him  with  the  gun,  he  is  guilty 
of  murder,  and  the  Jury  should  so  find." 

This  instruction  was  held  to  he  faulty  for  the  reason  that  it  as- 
sumed that  the  deceased  was  disabled  by  pistol  shots  fired  by  the  de- 
fendant, and  that  thereafter  the  defendant  could  not  avail  himself  of 
the  doctrine  of  self-defense.  But  whether  or  not  the  deceased  had 
been  so  disabled,  was  one  of  the  questions  to  be  determined  by  the 
jury. 

The  defendant  requested  that  the  following  instructions  be  given, 
which  were  refused: 

"The  court  instructs  the  jury  that  the  law  does  not  make  actual  or 
impending  danger  indispensable  to  the  exercise  of  the  right  of  self- 
defense,  but  that  the  law  considers  that,  when  threatened  with  danger, 
one  is  obliged  to  judge  from  appearances,  and  to  determine  therefrom 
as  to  the  actual  state  of  things  surrounding  him,  and  in  such  case,  if 
one  act  from  hurried  consideration,  induced  by  reasonable  evidence, 
he  will  not  be  held  responsible  criminally  for  a  mistake  as  to  the  ex- 
tent of  the  actual  danger;  but  if  the  jury  believe  from  the  evidence 
that,  at  the  time  of  the  shooting,  the  conduct  of  the  deceased  was  such 
as  to  excite  in  the  mind  of  a  reasonably  prudent  man  the  belief  that 
the  deceased  then  had  the  means  and  purposed  then  to  kill  the  de- 
fen(\ant,  or  to  do  him  great  bodily  harm,  he  was  justified  in  anticipat- 
ing the  attack,  if  it  was  present,  urgent,  and  otherwise  unavoidable, 
except  by  flight,  and  protecting  his  own  life  or  limb  by  taking  the  life 
of  his  adversary,  even  though  the  jury,  in  the  light  of  subsequent  de- 
velopments, may  believe  that  the  danger  was  not  real,  but  only  appar- 
ent; and  if  the  jury  so  believe,  it  is  their  duty  to  acquit."  "The  court 
charges  the  jury  that,  in  passing  upon  the  action  of  the  accused,  the 
jury  should  not  try  him  by  the  light  of  after-developments,  nor  hold 
him  to  the  same  cool  and  correct  judgment  which  they  are  able  to 
form.  They  should  put  themselves  in  his  place,  and  judge  of  his  act 
by  the  facts  and  circumstances  by  which  he  was  surrounded." 

The  court  thought  that  the  defendant  was  entitled  to  have  the  views 
expressed  in  these  instructions  presented  to  the  jury  «>nd,  for  the  ac- 
tion of  the  trial  court  on  these  three  instructions,  reversed  the  case. 

The  right  of  self-defense  should  not  be  liinited  by  the  ability  of  the 
defendant  to  distinguish  between  felonies  and  misdemeanors. — We  had 
prepared  State  v.  Sloan,  22  Mont.  293,  56  Pac.  Rep.  364  (March,  1899), 
but  owing  to  lack  of  space  we  are  obliged  to  omit  it.  The  most  salient 
feature  in  that  case  arose  over  an  instruction  given  to  the  effect  that, 
although  the  defendant  had  got  into  a  quarrel  and  was  assaulted  by 
the  deceased,  still  he  was  not  justified  in  using  a  deadly  weapon  unless 
he  had  good  reason  to  believe  that  there  was  imminent  danger  that  the 
deceased  would  kill  him  or  inflict  on  him  some  great  bodily  injury 
amounting  to  a  felony.    This  was  held  to  be  erroneous,  the  court  say- 


EVANS  V.  STATE. 


695 


tfter  shoot- 
hile  in  no 
i  deceased, 
d  deceased 
h  the  gun, 
e  is  guilty 

that  it  as- 
hy the  de- 
himself  of 
:eased  had 
led  by  the 

be  given, 

!  actual  or 
ht  of  self- 
th  danger, 
therefrom 
ch  case,  if 

evidence, 
to  the  ex- 
B  evidence 

was  such 
belief  that 
111  the  de- 

anticipat- 
lavoidable, 
ig  the  lifo 
equent  de- 
nly  appar- 
'The  court 
cused,  the 
,  nor  hold 
re  able  to 
of  his  act 

the  views 
or  the  ac- 
he case. 
ity  of  the 
—We  had 
•ch,  1899). 
)st  salient 
ffect  that, 
iaulted  by 
)on  unless 
r  that  the 
lly  injury 
court  say- 


ing that:  "The  right  of  one  assaulted  to  lull  his  assailant  in  self- 
defense  should  not  be  limited  by  his  ability  to  distinguish  between 
felonies  and  misdemeanors.  He  must  be  guided  by  a  reasonable  ap- 
prehension of  death  or  great  bodily  harm.  And  the  fear  or  apprehen- 
sion of  this  latter,  from  an  unlawful  beating  at  the  hands  of  the  as- 
sailant, may  be  sufficient,  even  when  the  assault  is  lacking  in  some  of 
the  elements  of  felony." 

Passion  and  malice  are  antagonistic  elements.— The  court,  in  sub- 
stance, instructed  that,  though  the  killing  was  done  in  a  quarrel  when 
defendant's  passions  were  aroused,  yet,  if  malice  were  present  in  his 
mind,  the  jury  must  determine  whether  the  "killing  was  prompted 
principally  by  such  passion  or  by  such  malice,"  and  thus  decide 
whether  the  offense  was  manslaughter  or  murder.  The  court  said: 
"There  can  be  no  such  thing  as  a  killing  with  malice,  and  also  upon 
the  furor  hrevis  of  passion;  and  provocation  affords  no  extenuation, 
unless  it  produces  passion.  JMalice  excludes  passion.  Passion  pre- 
supposes the  absence  of  malice.  In  law  they  cannot  co-exist;"  and 
argues  at  length  that  the  irresistible  passion,  aroused  by  adequate 
provocation,  necessary  to  reduce  the  killing  to  manslaughter,  rebuts 
the  idea  of  malice.    Id. 


EvAxs  V.  State. 

106  Ga.  519—32  S.  E.  Rep.  659,  71  Am.  St.  Rep.  276. 

Decided  March  4,  1899. 

Self-incrimination:   Illegal  methods  used  to  force  defendant  to  pro- 
duce evidence  against  himself — Such  evidence  is  incompetent. 

Following  the  decision  of  this  court  in  the  case  of  Day  v.  State,  03 
Ga.  GG7,  the  evidence  which  was  offered  by  the  State,  and  admit- 
ted, showing  that  the  accused,  while  not  under  legal  arrest,  had 
been  compelled  to  put  his  hand  in  his  pocket  and  surrender  a 
pistol,  thus  disclosing  that  he  was  violating  the  law,  was  not  ad- 
missible on  the  trial  of  such  person  for  the  offense  of  carrying 
concealed  weapons,  alleged  to  have  been  committed  on  that  oc- 
casion. 

(Syllabus  by  the  Court.) 

Plaintiff  in  error,  convietoJ  of  carrying  concealed  weapons 
in  the  City  Court  of  Hall  County,  Hon.  G.  II.  Prior,  Judge, 
brings  error.    Reversed. 

IT.  II.  Dean,  for  the  plaintiff  in  error. 

Ilowanl  Thompson,  Solicitor-General,  for  the  State. 


:i- 


u  1 


"i      S 


GOG 


AMERICAN  CRIMINAL  REPORTS. 


*«i 


|i  \ 


vh 


':!» 


Conn,  J.     Evans  was  convicted  of  the  offonso  of  cnrrving 

/  I/O 

concealed  weapons.  His  motion  for  a  new  trial  was  ovcrndcd, 
and  he  excepted. 

The  only  witness  introduced  on  the  trial  of  tlio  case  was 
IJrown,  a  policeman,  who  testified  that  ho  was  called  up  at  ni{;ht 
in  Gainesville,  Hall  ccmnty,  on  account  of  some  disturbance. 
When  he  got  to  the  place  where  the  disturbance  was  alleged  to 
have  occurred,  he  saw  nobody,  but  was  told  that  the  accused  had 
been  shooting  around  there.  After  a  while  he  saw  the  accused 
coming  down  the  road.  At  this  point  the  witness  was  allowed 
to  testify  as  follows:  "I  told  him  to  give  up  his  pistol,  and  ho 
said,  'What  pistol  V  and  I  said,  'The  one  you  have  been  shoot- 
ing with.'  He  refused  to  give  it  up,  but  I  called  ^Iv.  Lyles, 
another  policeman,  and  we  forced  him  to  give  it  up.  He  had  it 
in  his  hand,  imdcr  his  coat,  and  it  was  concealed  so  I  could  not 
see  it  until  after  I  compelled  him  to  give  it  up."  After  this, 
witness  arrested  the  accused.  He  had  no  warrant  for  the  ac- 
cused ;  and  neither  had  Lyles,  the  other  policeman.  That  part 
of  the  testimony  of  the  witness  which  is  quoted  above  was  ob- 
jected to  by  the  accused  on  the  ground  that  "no  party  can  be 
compelled  to  give  evidence  against  himself  by  act  or  words." 
The  refusal  of  the  court  to  exchulc  this  evidence  is  assigned  as 
error  in  the  motion  for  a  new  trial. 

The  constitution  of  this  State  provides  that  "no  person  shall 
be  compelled  to  give  testimony  tending  in  any  manner  tr)  crim- 
inate himself."  Civil  Code,  §  5703.  In  the  case  of  Day  v. 
State,  03  Ga.  0G7,  it  was  held  that:  "Evidence  that  a  witness 
forcibly  placed  defendant's  foot  in  certain  tracks  near  the  scene 
of  the  burglary,  and  that  they  were  of  the  same  size,  is  not  ad- 
missible. A  defendant  cannot  be  compelled  to  criminate  him- 
self by  acts  or  words."  In  that  case,  Allen,  a  witness  for  the 
State,  testified  that:  "Witness  took  hold  of  [the  accused],  and 
pulled  him  along,  and  then  he  put  his  foot  in  the  track.  The 
first  time  witness  told  him  to  put  his  foot  in  the  track,  defend- 
ant refused.  Witness  then  took  hold  of  his  foot  and  put  it  in 
the  track.  He  did  not  consent  to  it.  The  shoe  fitted  the  track." 
This  evidence  was  admitted  over  the  objection  of  the  accused 
that  it  was  compelling  him  to  furnish  evidence  against  himself, 
contrafry  to  the  constitution  of  the  State.    Chief  Justice  Warner, 


EVANS  I'.  STATE. 


r.i>7 


tiftcr  quoting  tho  constituticnnl  provisi.m  n1)nvo  f>ot  ..ut,  a^Ll..!- 
"Xor  can  one,  by  force,  compol  another,  apiinsf  hk  C(.i,s,.Mt  to 
put  his  foot  in  a  shoe  track,  for  the  purixis,.  of  using  it  a^  '-vi- 
dcncc  against  him  on  the  eriniiual  side  of  tiio  ounvt,— tlm  nicro 
especially  when  the  person  using  such  forco  has  no  lawful  war- 
rant or  authority  for  doing  so."  Jt  will  thus  ho  so(mi  that  in  th.' 
case  cited  the  constitutional  provision  was  constnied  to  apply  tu 
cases  other  than  those  in  which  the  accused  was  f..rco.l  to  ojvc 
evidence  against  himself,  either  in  court,  or  pmsuaiit  to^an 
order  of  court.  In  the  present  case,  neither  the  offie.M-  who  testi- 
fied nor  the  officer  who  assisted  in  the  arrest  had  any  warrant 
for  the  accused,  nor  was  any  arrest  made  until  after  the  aeeu^ed 
>vas  forced  to  give  up  his  pistol.  The  only  fair  interi)ri.tatini, 
that  can  be  given  to  the  evidence  objected  to  is  that  the  accused 
was  compelled,  against  his  consent,  to  put  his  hand  in  his  pocket, 
and  surrender  his  pistol  to  the  officers,  an<l  thus  disclose  that  he 
was  guilty  of  a  violation  of  law.  Viewing  the  case  in  this  light, 
we  think  it  is  controlled  by  the  decision  in  the  Daij  Cti.sr,  an^I 
that  the  court  erred  in  admitting  the  evidence  objected  to.  We 
have  made  a  careful  examination  of  the  decisions  of  this  omit 
bearing  upon  this  question,  and  find  none  which,  properly  r^ni- 
strued,  conflicts  with  the  ruling  here  made. 

The  case  of  Franklin  v.  State,  GO  Ga.  3G,  differs  from  the 
present  case  in  three  important  respects:  (1)  The  accused  was 
under  legal  arrest;  (2)  he  did  not  object  to  furnishing  the  in- 
eriminating evidence;  and  (;])  he  remained  passive  while  slinos, 
wliicb  were  afterwards  used  as  evidence  of  his  guilt,  wore  pulloJ 
from  his  feet  by  others.  Chief  Justice  Jackson,  in  his  opinion 
in  that  case,  in  distinguishing  it  from  the  Day  Case,  makes  use 
of  this  language:  "It  was  that  which  he  wore  which  witnessed 
against  him,  and  not  any  act  he  did  under  coercion,  such  as 
being  forced  to  put  his  feet  in  tracks  somebody  had  luaile."' 
While  the  hcadnote  in  the  case  of  Drak-e  v.  Stale,  7.")  Ga.  41o, 
restricts  the  application  of  the  constitutional  provision  above 
quoted  to  persons  sworn  as  witnesses  in  a  case,  an  examination 
of  the  facts  appearing  of  record  in  that  case  will  show  that  it  is 
really  not  in  conflict  with  the  Day  Case,  or  the  ruling  made  in 
the  present  case.  While  it  appears  that  part  of  the  clothing  in- 
troduced in  evidence  was  taken  off  of  the  person  of  the  accused, 


a    -I 


f-M  i 


COS 


AMEUICAN  CRIMINAL  IlEPORTa 


he  was  nt  the  time  in  legal  custody;  aiul  no  objection,  so  far  as 
tlie  record  discloses,  was  made  by  him.  Woolfulk's  Case,  81  Ga. 
5r>l,  8  S.  E.  Ren.  724,  is  to  bo  distinguished  from  the  Dai/  Cane 
for  the  same  reasons  as  the  case  last  cited.  In  the  Myers  Case, 
07  CJa.  7G,  25  S.  E.  Rep.  252,  the  accused  was  not  forced  against 
his  will  to  furnish  evidence  against  himself.  In  discussing  this 
question,  Atkinson,  J.,  recognizes  the  distinction  laid  down  by 
Chief  Justice  Jackson  in  the  Franklin  Case,  supra,  in  the  quo- 
tation above  set  out.  Resides,  flyers  was  under  arrest,  and  it 
does  not  appear  whether  the  shoes  introduwd  in  evidence  were 
taken  from  his  feet,  or  whether,  if  this  was  done,  he  raised  any 
objection  thereto.  In  the  case  of  Williatiis  r.  Slate,  100  Ga. 
511,  28  S.  E.  Rep.  024,  no  such  question  as  the  one  novv  under 
discussion  was  raised  or  decided.  In  that  case  an  oificer  took 
from  the  person  of  the  accused  marked  coins,  wliieh  were  aft(>r- 
wards  used  in  evidence  against  her.  She  was  not  compellcil  to 
furnish  any  evidence  whatever  against  herself.  The  decision  in 
that  case  simply  holds  that  the  constitutional  provision  as  to  un- 
reasonable searches  and  seizures  did  not  render  the  evidence 
inadmissible.  It  was  there  said  that  the  pur])ose  of  the  consti- 
tutional provision  was  to  deter  the  lawmaking  power  from  au- 
thorizing or  declaring  lawful  any  unreasonable  search  or  seiz- 
ure, and  to  prevent  cfnirts  and  executives  frou  ciil'i  s  any 
law  which  was  violative  of  this  provisuMi  i.i-  hat  it  wa^^  not 
Intended  to  operate  so  as  to  ])revent  ti  .ts  fnnii  re     \  ing 

evidences  of  crime,  although  tliey  migl  ive  been  obtaiiu'd  by 
an  illegal  and  unreasonable  search  and  seizure.  Ir  would  seem 
from  these  cases  that  the  law  in  this  State  is  tout  evidence  of 
gnllt  found  upon  a  person  un<ler  legal  ari'est  may  be  used  in 
evidence  against  him,  but  that,  where  a  person  not  in  legal  cus- 
tody is  compelled  to  funiish  incriminating  evidence  against  him- 
self, the  evidence  is  not  admissible.  The  ruling  made  in  the 
Day  Case  constrains  us  to  reverse  the  judgment  of  the  court 
below  in  refusing  a  new  trial,  on  the  ground  that  the  evidence 
com])lalned  of  was  Improperly  admitted.  Judgment  reversed. 
All  the  justices  concurring. 

Notes  (by  J.  F.  G.). — Another  very  interesting  Georgia  case,  where 
authorities  are  reviewed,  is  Blackwell  v.  State,  67  Ga.  76,  4  Am.  Grim. 
Rep.  183.     In  that  case  a  conviction  for  murder  was  reversed  because 


EVANS  V.  STATE 


(V.)!) 


,  60  fnr  n8 
ae,  81  Gti. 
Da  If  Cane 
ijcrs  Case, 
L>d  ngalnst 
issing  thia 
1  down  by 
a  the  quo- 
!st,  and  it 
onoo  woro 
•aisctl  nny 
,  100  (Ja. 
low  under 
fficer  took 
•ere  aft(>r- 
npell('<l  to 
eeision  in 
I  as  to  un- 

evidenco 
ho  consti- 

froni  an- 
il or  seiz- 
s  any 

t  W:is  not 
rf<  ving 
taiiu'd  by 
)uld  seem 
idencc  of 
c  use<l  in 
legal  ens- 
inst  liiin- 
le  in  the 
the  court 
evidence 
reversed. 


ise,  -where 
Am.  Crim. 
id  because 


the  court  had  directed  the  defendant  to  stand  up  Jn  the  prPBonce  of  iho 
jury  and  a  witneaa.  thereby  showing  that  his  right  leg  was  ampnlntpd 
below  the  knee.  The  witness  had  testified  as  to  cortaln  tracks  and  Im- 
presslons  made  on  the  ground  near  the  place  of  the  homicide,  In  which 
appeared  the  Impression  of  the  left  foot  of  a  man  with  the  appearance 
as  though  he  was  upon  the  knee  of  his  other  leg. 

In  atokea  v.  State,  5  Baxt.  (Tenn.)  G19,  30  Am.  Rep,  72,  a  conviction 
was  reversed  because  the  prosecuting  attorney  brought  a  pan  of  mud 
into  the  court  and  placed  it  in  the  presence  of  the  jury;  and,  having 
proved  that  the  mud  was  about  as  soft  as  that  where  tracks  were 
found,  requested  the  prisoner  to  place  his  toot  In  the  pan  of  mud.  The 
trial  Judge  having  Instructed  the  prisoner  that  he  could  comply  or  not, 
as  he  pleased,  he  refused;  and  the  judge  instnuted  the  jury  thiU  this 
should  not  be  taken  against  him.  The  conduct  of  the  prosecuting  at- 
torney was  regarded  as  suffldenfiy  prejudicial  to  cause  a  reversal,  not- 
withstanding the  Instruction  of  the  judge. 

In  Htate  v.  Jacobs,  5  Jones  (50  N.  C),  2.")9.  it  was  held  error  for  a 
trial  judge  to  compel  a  defendant  to  exhll)lt  himself  for  Inspection  by 
the  jury  to  enable  them  to  determine  his  status  as  a  free  negro. 

Privilege  of  tiitnesnes.— In  Xeale  v.  Cunningham,  1  Cranch,  C.  C. 
70,  which  was  an  action  for  damages  because  of  a  false  Iniprisonnient, 
the  constable  who  served  the  ca.  sa.  was  called  as  a  witness,  and  he 
objected  to  being  sworn,  because  his  testimony,  if  material  In  the 
case,  might  tend  to  criminate  him.  It  was  hold  by  two  of  the  presid- 
ing judges  that  he  was  exempt  from  taking  the  oath  as  a  witness;  but 
the  third  judge  claimed  that  he  ought  to  take  the  oath,  and  could  only 
object  to  answering  questions  tending  to  criminate  him.  Where,  as  In 
that  case,  the  cause  of  action  Is  based  upon  a  proceeding  claimed  to 
be  criminal  in  its  nature,  It  would  seem  that  a  witness,  such  as  the 
constable  who  made  the  arrest,  should  lie  privileged  from  taking  the 
oath;  for  any  matter  that  he  might  testify  to  might  tend  to  establish 
a  cause  of  action,  and  supply  a  missing  link,  thereby  subjecting  him 
to  a  future  prosecution. 

In  Lavison  v.  Boydcn.  IGO  111.  013.  43  X.  E.  Rep.  781,  the  court  below 
refused  to  compel  the  defendants  to  produce  certain  books  and  docu- 
ments, and  to  answer  certain  questions,  for  the  avowed  purpose  of 
proving  that  the  defendants  had  cornered  the  marlcet  as  alleged,  etc. 
This  ruling  was  affirmed  by  the  Supreme  Court,  that  court  holding 
that  a  witness  need  not  answer  any  question  that  would  tend  to,  or 
furnish  a  link  in  a  chai'i  of  evidence  to,  criminate  himself,  unless  it  is 
not  only  shown  that  the  statute  of  limitation  bars  the  prosecution  for 
the  alleged  crime,  but  that  there  is  no  prosecution  pending  therefor. 

In  Samuel  v.  People,  104  111.  379,  45  N.  E.  Rep.  728.  It  was  held  that 
the  witness,  who  had  verified  the  information  against  the  defendant, 
still  retained  his  right  to  decline  to  testily  against  the  defendant,  on 
the  ground  that  such  testimony  might  criminate  the  witness;  but  in 
that  case,  the  objection  being  overruled,  and  the  witness  having  testi- 
fied, It  was  held  that  the  defendant  should  not  take  advantage  of  the 
ruling,  in  that  it  was  a  personal  privilege  possessed  alone  by  the  wit- 
ness. 


I  I 


til 

(I 


700 


AMERICAN  CRIMINAL  REPORTS. 


In  Cottnsehnan  v.  Hitchcock,  142  U.  S.  547,  12  Sup.  Ct.  Rep.  195,  It 
was  helf".  that  even  an  act  of  Congress  declaring  that  such  evidence 
coi'i'i  uot  be  used  against  the  witness  in  a  future  prosecution  would 
not  deprive  the  witness  of  his  privilege;  the  statute  not  granting  to 
him  entire  immunity  from  prosecution. 

In  United  States  v.  Collins,  1  Wood,  499  (510),  a  challenge  was  made 
to  the  grand  jury  panel,  and  the  United  States  marshal  was  called  as 
a  witness  to  prove  the  manner  in  which  the  grand  jury  was  summoned. 
He  declined  to  testify,  because,  if  the  grand  jury  was  irregularly  im- 
paneled, he  was  liable  to  a  penalty.    This  objection  was  sustained. 

The  case  of  Miskimins  v.  Shaver  (Sheriff),  8  Wyo.  392,  58  Pac.  Rep. 
411,  49  L.  R.  A.  831,  gives  a  lengthy  review  of  this  subject.  The  relator, 
who  was  committed  for  refusing  to  answer  certain  questions,  was  re- 
leased upon  writ  of  habeas  corpus.  One  judge  dissented,  and  filed  a 
lengthy  dissenting  opinion. 

Upon  this  subject,  see  also  People  v.  McCoy,  45  How.  Pr.  216;  People 
V.  Wolcott,  51  Mich.  612;  People  v.  Mead,  50  Mich.  278;  Ex  parte 
Senior,  32  L.  R.  A.  123;  Ex  parte  Gould,  21  L.  R.  A.  751;  Rice  v.  Rice, 
47  N.  J.  L.  559,  11  L.  R.  A.  591;  State  ex  rel.  v.  Simmons  Hardware 
Co.,  15  L.  R.  A.  676;  Re  Buskett,  14  L.  R.  A.  407;  Kendrick  v.  Com- 
monwealth, 78  Va.  493;  Cullen  v.  Commonwealth,  24  Gratt.  624;  State 
V.  i:owell,  58  N.  H.  314;  Emery's  Case,  107  Mass.  172,  9  Am.  Rep.  22; 
United  States  v.  James,  60  Fed.  Rep.  257,  26  L.  R.  A.  418;  Oalbreath 
V.  Eichelberger,  3  Yeates,  515;  Republic  v.  Gibbs,  3  Yeates,  429;  Horst- 
man  v.  Kaufman,  97  Pa.  St.  147;  N.  W.  Bank  v.  Nelson,  1  Gratt.  110; 
Alabaster  v.  Hamer,  70  Law  Rep.,  Law  Times,  375;  Reg.  v.  Hassett,  8 
Cox,  C.  C.  511. 


People  v.  Fitzgeuald. 

156  N.  Y.  253—50  N.  E.  Rep.  846. 

Decided  June  7,  1898. 

Tbial:  Arson — Circumstantial  evidence — Presumptions — Motive — Gen- 
eral chatacter — Particular  acts  of  misconduct — Other  similar  of- 
fenses— Derogatory  letters  from  superiors — Cross-examination — 
Instructions  and  remarks. 


Where  a  conviction  is  sought  upon  circumstantial  evidence,  the 
circumstances  must  be  established  by  proof,  not  inferentially,  and 
must  all  be  consistent  with  and  point  to  guilt,  and  must  be  in- 
consistent with  innocence. 

Proof  of  motive  or  inducement  to  the  criminal  act  is  resorted  to 
for  the  purpose  of  explaining  evidence  which  might  otherwise  re- 
main in  doubt.  The  motive  cannot  b6  based  upon  imagination 
any  more  than  any  other  fact,  but  must  be  based  upon  evidence. 


PEOPLE  r.  FITZGERALD. 


7>'l 


Rep.  195,  It 
!h  evidence 
ition  would 
granting  to 

3  was  made 
IS  called  as 
summoned, 
gularly  iin- 
istalned. 
8  Pac.  Rep. 
rhe  relator, 
ns,  was  re- 
and  filed  a 

216;  People 
;  Ex  parte 
ice  V.  Rice, 
t  Hardware 
ck  V.  Com- 

624;  State 
n.  Rep.  22; 
;  Oalbreath 
429;  Horst- 
Gratt.  110; 

Hassett,  8 


)tive — Oen- 
similar  of- 
nination — 


dence,  the 
tially,  and 
ust  be  in- 

esorted  to 
lerwise  re- 
agination 
evidence. 


While  it  is  proper  to  prove  a  motive,  it  must  hnve  some  logical 
and  legal  relation  to  the  criminal  act  charged. 

3.  The  defendant  was  charged  with  the  specific  offense  of  hurning, 

or  causing  to  be  burned,  a  parochial  school  building,  belonging  to 
a  religious  corporation  of  which  he  was  trustee,  pastor  and  man- 
ager, the  assumed  motive  being  to  collect  the  insurance  thereon. 
out  of  which  to  pay  himself  the  salary  in  arrears,  which  was  due 
him;  and  it  was  not  to  be  expected  that  on  trial  he  would  be  able 
to  explain  or  rebut  an  array  of  circumstances  put  in  evidence, 
covering  a  variety  of  other  charges,  of  improper  acts  and  moral 
delinquencies,  and  exhibitions  of  an  unjust  and  arbitrary  dispo- 
sition, nor  to  explain  charges  of  other  burnings,  imless  they  were 
well  established  and  had  a  direct  bearing  on  the  issue  being 
tried. 

4.  It  was  error  to  admit  evidence  that  other  property  of  the  corpora- 

tion had  been  burned  more  than  two  years  previous  and  that  the 
insurance  company  had  persisted  in  canceling  the  policies  talven 
out  by  defendant,  the  origin  of  such  fires  not  being  shown.  Also 
error  to  refuse  to  instruct  the  jury  that  such  evidence  should  not 
be  considered,  and  in  remarking  that  "There  is  a  proper  and  law- 
ful purpose  for  which  the  jury  may  consider  those  fires." 

5.  (2,  3,  6)   It  was  error  to  admit  in  evidence  circumstances  tending 

to  show  that  defendant  had  once  assaulted  his  female  servant; 
to  admit  a  letter  to  defendant  from  his  bishop  containing  state- 
ments derogatory  to  the  conduct  of  defendant;  also  evidence  tend 
ing  to  show  that  defendant  was  unjust,  arbitrary  and  unreason- 
able in  his  conduct  toward  those  under  his  control. 

6.  (4)  It  was  error  to  refuse  to  instruct  that  the  presumption  of  law 

is  that  the  defendant  would  not  misappropriate  the  money  of  the 
corporation,  etc.;  and  error  to  charge  that  "There  is  no  such 
rebuttable  presumption  that  I  know  of,"  etc. 

7.  (5)  It  was  error  to  qualify  an  instruction  on  the  failure  of  the  de- 

fendant to  testify,  by  telling  the  jury  that  while  the  statute  pro- 
vides that  no  presumption  should  be  indulged  in  against  a  de- 
fendant because  of  his  not  testifying,  the  statute  does  not  say 
"that  the  jury  shall  consider  all  of  the  evidence  as  denied  by 
him,  which  he  might  deny  if  he  took  the  stand,"  etc. 

8.  (7)  Defendant  was  not  allowed  to  ask,  on  cross-examination,  an 

attorney  to  whom  he  had  given  the  insurance  policy  for  collec- 
tion, whether  he  (defendant)  had  not  told  him  to  pay  the  money 
to  the  bishop,  when  collected.  This  question  related  to  the  very 
transaction  about  which  the  witness  had  testified,  and  an  answer 
to  it  might  have  tended  to  rebut  or  dispel  the  theory  of  a  crim- 
inal motive  in  the  defendant,  which  the  prosecution  contended 
was  an  essential  element  of  the  case.  The  question  was  proper. 
and  the  ruling  thereon  erroneous. 

Appeal  by  John  M.  FitzgeralJ  from  a  judiriiiont  of  tlio  Ap- 
pollato  Division  of  the  Supreme  Court  in  tlio  Fom-th  Judicial 
Department,  afRruiing  a  judgment  of  the  .Monroe  County  Court 


■■i 


ill 


T02 


AMERICAN  CRIMINAL  REPORTS. 


convicting  him  of  the  crime  of  arson  in  the  second  degree,  and 
an  order  donviiig  a  new  trial.    Reversed. 
(People  V.  Fi'zgerald,  20  App.  Div.  139.) 

David  N.  Salisbury,  for  the  appellant. 
George  D.  Forsythe,  for  the  respondent. 

O'Brien,  J.  The  defendant  was  indicted  for  the  crime  of 
arson  in  the  first  degree,  convicted  of  arson  in  the  second  degree, 
and  sentenced  to  imprisonment  in  the  State  prison  for  the 
term  of  ten  years.  The  specific  charge  in  the  indictment  was 
that  on  the  17th  day  of  July,  1895,  he  set  fire  in  the  night  and 
Imrned  the  parochial  school  house  in  the  village  of  Chr.i'ntte,  in 
which  building  there  was  at  the  timo  a  human  being.  The  build- 
ing was  the  property  of  a  religious  corporation,  and  the  defend- 
ant, as  the  pastor  of  the  parish  church  with  which  the  scliool  was 
connected,  was  one  of  the  five  trustees  who  had  charge  of  the 
corporate  property  and  the  management  of  the  temporal  aifairs 
of  the  congregation.  In  this  capacity  as  trustee  he  had  pro- 
cured the  building  to  be  insured  to  an  amount  fully  equal  to, 
if  not  in  excess  of,  the  actual  value;  the  loss,  if  any,  being  pay- 
able by  the  terms  of  the  policies  to  the  corporation  by  its  cor- 
porate name. 

It  is  not  claimed  that  the  defendant  actually  or  personally 
set  the  fire.  Indeed,  it  is  admitted  on  all  sides  that  on  the  night 
when  the  fire  took  place  he  was  absent  from  the  scene  of  the 
crime,  and  conld  not  have  personally  participated  in  it.  The 
theory  of  the  prosecution  is  that  the  fire  was  set  by  one  John 
Cronin,  and  it  incidentally  api>ears  in  the  record  that  he  was 
convicted  of  the  crime,  but  that  the  defendant  procured  him  to 
do  the  criminal  act.  Cronin  was  the  servant  of  the  religious 
corporation,  employed  by  the  defendant  in  his  capacity  as  trus- 
tee, to  have  the  care  of  the  church,  school  house,  parochial  resi- 
dence, in  which  the  defendant  resided,  and  other  corporate  pro])- 
erty  as  janitor.  Practically  the  relations  between  the  defend- 
ant and  Cronin  were  those  of  master  and  servant,  since  the  lat- 
ter was,  in  the  discharg-o  of  his  duties,  subject  to  the  directions 
of  the  former,  and  to  a  very  great  extent,  if  not  wholly,  tmder 
his  control.  It  appears  that  "Nora  Cronin,  a  sister  of  John,  was 
a  domestic  in  the  defendant's  house,  and  the  claim  is  that  the 


ogreo,  and 


!  crime  of 
nd  degree, 
n  for  the 
iincnt  was 
night  and 
i'.i'ntte,  in 
rhe  build- 
le  <lefend- 
^ehool  was 
rgo  of  the 
ral  affairs 
had  pro- 
oqnal  to, 
jeing  pay- 
)j  its  cor- 

jersonally 
the  night 
ne  of  the 

it.  The 
one  John 
it  lio  was 
?(\  him  to 

roligiims 
V  as  trus- 
hial  resi- 
rate  pro])- 
e  dofond- 
e  the  hit- 
lirections 
ly,  under 
Tohn,  was 

that  the 


PEOPLE  V.  FITZGERALD.  ^,,0 

defendant,  through  her,  procured  John  to  burn  the  school  h..u.o 
In  the  criminal  law  a  person  concerned  in  the  commission  of 
a  crime,  whether  he  directly  commits  the  act  constituting  the 
offense  or  aids  or  abets  in  its  commission,  ^vllethcr  present  or 
absent,  and  a  person  who,  directly  or  indirectly,  counsels,  com- 
mands, induces,  or  procures  another  to  comniit  a  crime  i.  i 
prineii>al.  Penal  Code,  §  29.  The  issue  presented  for  trial  was, 
therefore,  very  clear  and  distinct.  It  was  whether  the  defend- 
ant in  fact  did,  either  directly  or  indirectly,  counsel,  command, 
induce,  or  procure  John  Cronin  to  commit  the  oflFense  charged 
in  the  indictment.  It  is  not  claimed  that  there  was  any  diiwt 
proof  ^hat  he  did.  It  was  competent  for  the  People,  however, 
to  prove  the  charge  by  circumstantial  evidence,  and  they  at- 
tempted to  sustain  the  case  wholly  by  evidence  of  that  character. 
The  Peojde  had  the  burden  of  proof,  and  a  great  variety  of 
facts  and  circumstances  were  shown,  all  tending,  as  is  claimed, 
to  prove  the  main  fact  which  was  in  issue.  If  the  case  was 
otherwise  free  from  error,  and  the  sole  question  was  whether 
there  was  sufficient  proof  to  warrant  the  submission  of  the  case 
to  the  jury,  we  Avould,  I  think,  feel  concluded  by  the  verdict 
Avith  respect  to  the  question  of  fact  involved.  But  it  is  not  everv 
fact  or  circumstance  from  which  an  ingenious  or  imaginative 
mind  may  infer  by  some  process  of  reasoning  the  existence  of 
the  main  fact  in  issue  that  the  law  admits  as  possessing  tlie 
force  and  certainty  of  evidence.  In  attempting  to  prove  a  fact 
by  circumstantial  evidence  there  are  certain  rules  to  be  observed 
that  reason  and  experience  have  found  essential  to  the  discovei'v 
of  truth  and  the  protect'on  of  innocence.  The  circumstance-! 
themselves  must  be  established  by  direct  proof,  and  not  left  to 
rest  upon  inferences.  The  inference  which  is  to  be  based  \\\wn 
the  facts  and  circumstances  so  proved  must  be  a  clear  and  strong 
logical  inference,  an  open  and  visible  connection  between  the 
facts  found  and  the  proposition  to  be  proved.  When  a  criminal 
charge  is  sought  to  be  sustained  wholly  by  circumstantial  evi- 
dence, the  hypothesis  of  guilt  or  delinquency  should  flow  natu- 
rally from  the  facts  and  circumstances  proved,  and  be  consistent 
with  them  all.  The  evidence  of  facts  and  circumstances  must 
l>e  such  as  to  exclude  to  a  moral  certainty  every  hypotbosis  but 
that  of  guilt  of  the  offense  imputed;  or,  in  other  v.ords,  the  facts 


I 


I? 


ifij 


lOi 


AMERICAN  CRIMINAL  REPORTS. 


and  circumstances  must  all  bo  consistent  with  and  point  to  tlio 
guilt  of  the  accused  not  only,  but  they  must  be  inconsistent 
with  his  innocence.  In  the  investigation  of  all  charges  of  crime 
it  is  competent  to  prove  a  motive  on  the  part  of  the  accused  for 
the  commission  of  the  criminal  act.  Motive  is  an  inducement, 
or  that  which  leads  or  tempts  the  mind  to  indulge  the  criminal 
act.  It  is  resorted  to  as  a  means  of  arriving  at  an  ultimate  fact, 
not  for  the  purpose  of  explaining  the  reason  of  a  criminal  act 
which  has  been  clearly  proved,  but  for  the  important  aid  it  may 
render  in  completing  the  proof  of  the  coiinnission  of  the  act 
when  it  might  otherwise  remain  in  doubt.  With  motives,  in  any 
speculative  sense,  neither  the  law  nor  the  tribunal  which  ad- 
ministers it  has  any  concern.  It  is  in  cases  of  proof  by  circum- 
stantial evidence  that  the  motive  often  becomes  not  only  ma- 
terial, but  controlling,  and  in  such  cases  the  facts  from  which  it 
may  be  inferred  must  be  proved.  It  cannot  be  imagined  any 
more  than  any  other  circumstance  in  the  case.  People  v.  Ben- 
nett, 40  N.  Y.  137',  People  v.  Owens,  148  N.  Y.  G48,  43  X.  E. 
Rep.  71 ;  1  Greenl.  Ev.,  §  1.3. 

The  motive  attributed  to  the  accused  in  any  case  must  have 
some  legal  or  logical  relation  to  the  criminal  act  according  to 
known  niles  and  principles  of  hiunan  conduct.  If  it  has  not 
such  relation,  or  if  it  points  in  one  direction  as  well  as  in  the 
other,  it  cannot  be  considered  a  legitimate  part  of  the  proof. 

In  this  case  the  People  claim  that  the  defendant  had  a  motive 
in  procuring  the  building  to  be  destroyed,  and  that  was  that  the 
church  corporation  owning  it  was  indebted  to  him  for  arreai-s  of 
salary,  and  that  his  purpose  was  to  get  possession  of  the  insur- 
ance in  order  to  apply  it  on  the  salary  claimed.  The  defendant 
w'as  the  treasurer  of  the  corporation,  and  the  motive  supposed 
involved  a  wrongful  appropriation  of  the  money,  and  the  ac- 
quiescence of  the  other  officers  and  trustees,  either  actively  or 
passively,  in  the  scheme.  Whether  such  a  motive  is  a  legitimate 
inference  from  the  facts  or  a  remote  speculaticn  we  will  not  now 
inquire.  Such  a  motive  does  not,  in  the  ordinary  course  of 
things,  inhere  in  the  relations  of  'debtor  and  creditor.  The 
chances  of  the  creditor  being  able  to  reach  the  money  when  pay- 
able to  the  debtor  himself  are  so  precarious,  uncertain,  an<l  re- 
mote that,  ordinarily,  a  motive  to  destroy  the  property  iu'-ured 


it  to  the 
)nsistent 
of  crime 
used  for 
leemcnt, 
criminal 
late  fact, 
linal  act 
d  it  may 
:  the  act 
s,  in  any 
hich  ad- 
7  circum- 
only  ma- 
which  it 
ined  any 
z  V.  Bcn- 
43  N.  E. 

iu?t  have 

)rding  to 
has  nut 

as  in  the 
roof. 

a  motive 
that  the 

rroara  of 
le  insur- 

ofcnchant 
upposed 

11  the  ac- 

|tively  or 
gitimatc 
not  now 
onrse  of 
r.  The 
[hen  pay- 
an<l  re- 
insured 


PEOPLE  V.  FITZGERALD. 


7ti5 


cannot  be  attributed  to  the  fonnor.    It  may  he  that  in  this  case 
the  defendant's  relations  to  tlic  corporation  to  wliicli  the  money 
■was  payable,  and  his  control  over  its  action,  were  siieli  as  to 
justify  the  imputation.    iMuoh  cvidoiicc  was  givon  to  show  that 
the  debt  either  existed  or  was  chumod  by  the  dcfciulant,  and  the 
cliaracter  of  the  proof  on  this  point  was  such  tliat  the  jury  Cduld 
draw  inferences  from  it  quite  damaging  and  injurious  lu  the  de- 
fendant's general  character  and  conduct  in  other  respects.    If, 
however,  it  tended  to  prove  a  motive  for  the  conmiission  of  the 
offense  charged,  it  was  none  the  Ic^s  admitjsiblo  because  it  ter.ilod 
also  to  prove  that  the  defendant  may  have  been  guilty  of  souio 
other  crime  or  moral  delinquency.    The  case  was  evidently  tried 
upon  the  principles  of  the  McKane  Case,  143  X.  Y.  4.")5,  o8 
"N.  E.  Rep.  950.    There  can  be  no  doubt,  I  think,  that  the  courts 
went  quite  far  enotigh  in  that  case  in  sanctioning  evidence  tend- 
ing to  prove  other  offenses  against  the  accused  than  the  one 
eliarged.     But,  although  they  were  quite  injurious  to  the  ac- 
cused, they  had  some  bearing  on  the  main  point  in  issue,  and 
this  court  was  careful  to  point  out  the  difficulty  which  a  perscm 
cliargod  with  a  specific  offense  has  to  meet  upon  such  a  trial  with 
a  multitude  of  inculpatory  facts  claimed  to  be  relevant  to  the 
main  issue.    We  observe  now,  as  we  did  then,  that  "there  is  al- 
ways danger  in  such  cases  that  the  specific  charge  will  be  lost 
sight  of  and  disappear  in  the  mass  of  collateral  facts  growing 
out  of  other  siibjects,  and  that  the  defendant  may  be  convicted 
because  of  other  wrongdoing  with  which  he  was  not  charged." 
P.  475,  143  X.  Y.,  and  p.  956,  3S  X.  E.  Rep.    Any  departure 
from  the  real  issue  in  the  case  to  investigate  other  transnetions 
tends  to  divert  the  minds  of  the  juiy  from  the  real  question  he- 
fore  them,  and  to  prejudice  the  accused. 

The  defendant  was  required  in  this  case  to  answer  a  specific 
charge,  and  that  was  whether  he  had  instigated  or  procured, 
directly  or  indirectly,  the  building  in  question  to  be  burned.  Ho 
was  not  expected  to  be  able  to  answer  or  to  explain  all  the  other 
faults  and  delinquencies  of  his  life,  and  hence  past  transactions 
involving  the  suspicion  of  other  possible  wrong-doiug,  or  acts 
from  which  inferences  of  moral  turpitude  might  be  drawu, 
should  liave  been  exclmled,  unless  it  can  be  shown  that  they  had 
some  bearing  on  the  main  fact  to  be  proved.  His  moral  cliar- 
Voi,XI-45 


n 
I 

'■'li' 

I  HI 


i; 


hi 
/t\i  f: 


m 


AMERICAN  CRIMINAL  REPORTS, 


actcr  was  not  involved  in  the  inquiry,  since  he  did  not  make  it 
a  suhjoet  for  dehate  himself,  or  testify  in  his  own  hehalf.  The 
rule  that  an  accused  party  may  resort  to  affirmative  pi'oof  of 
good  character  in  order  to  repel  the  presumjition  of  guilt  raised 
hy  the  evidence,  while  the  prosecution  is  not  permitted  to  re- 
sort to  proof  of  had  character  in  order  to  overcome  the  legal  pre- 
sinnption  of  innocence,  is  founded  \ipon  the  henign  principles 
that  underlie  the  criminal  law,  and  is  in  hannony  with  that  pre- 
sumption against  crime  with  which  every  investigation  of  a 
criminal  charge  must  hegin.  And,  however  natural  it  may  ho 
for  the  common  miud  to  reason  that  a  person  who  has  com- 
mitted, or  is  suspected  of  having  eonunitted,  one  offense,  is 
likely  to  commit  another,  and,  therefore,  he  guilty  of  tho  one 
charged,  yet  the  law  refuses  to  recognize  it  as  a  fact  or  circum- 
stance tending  to  estahlish  the  specific  charge  or  to  allow  the  ac- 
cused to  he  prejudiced  in  that  way  with  the  jury.  The  prin- 
ciples of  the  law  of  evidence  that  govern  all  criminal  trials  are, 
as  Lord  Erskine  once  ohserved,  "founded  in  the  charities  of  re- 
ligion, in  the  philosophy  of  nature,  in  the  truths  of  history,  and 
in  the  experience  of  common  life."    24  Howell's  St.  Tr.  900. 

The  record  in  this  case  discloses  numerous  decisions  and  rul- 
ings made  at  the  trial  with  respect  to  the  admission  and  exclu- 
sion of  testimony,  and  in  the  charge  of  the  court,  which  wc 
think  were  erroneous  and  prejudicial  to  the  defendant.  Wo 
will  not  attempt  to  deal  with  all  the  questions  raised  and  dis- 
cussed by  his  counsel,  but  only  such  as  appear  to  us  to  be  the 
most  prominent. 

(1)  The  People  were  permitted,  against  the  defendant's  ob- 
jection and  exception,  to  prove  that  more  than  two  years  prior 
to  the  burning  of  the  school  house  other  property  of  the  church 
corporation,  covered  by  insurance,  had  l)cen  burned ;  also  some 
of  the  defendant's  private  property ;  and  that  as  a  consequence 
the  agents  of  the  insurance  company  insisted  upon  canceling 
policies  upon  other  property  which  the  defendant  had  procured 
to  be  written.  There  was  much  evidence  of  that  character  of- 
fered and  received,  but  the  real  origin  of  the  former  fires  was 
left  to  conjecture.  The  defendant's  counsel  requested  the  court 
to  instruct  the  jury  that  there  was  no  evidence  in  the  case  to 
show  that  any  of  the  previous  fires  were  of  incendiary  origin, 


PEOPLE  V.  FITZGERALD. 


and  that  the  jury  should  luit  consider  thorn  as  ovMcncc  in  the 
case.  To  this  request  tlie  learned  trial  ju(l«j;o  replied:  "1  do  nut 
sec  anything  wrong  in  that  request,  and  1  so  eliarge  the  j\u-y, 
omitting  the  latter  fact.  That  the  jury  should  not  cimsidci 
any  of  these  alleged  fires  is  hardly  proper.  There  is  a  pmiMT 
and  lawfid  purpose  for  whieh  the  jury  may  consider  those  tires." 
The  defendant's  counsel  excepted  to  these  remarks.  Jt  is  quite 
evident  that  the  defendant's  case  was  in  a  worse  condition  after 
the  request  than  it  was  heftn-e,  although  the  learned  judge  ad- 
mitted that  he  could  see  nothing  wrong  in  the  request.  The 
jury  were  plainly  t<dd  that  they  could  consider  the  evidence  fur 
sonu!  jnirpose  which  was  not  stated.  We  have  already  shown 
that  this  evidence  which  tended  to  create  a  suspicion  in  the 
minds  of  the  jury  that  the  defendant  nniy  have  been  c>Mmected 
with  other  oifenses  of  the  same  character  as  the  one  charced  was 
not  admissihle.  There  was  no  legal  connection  shown  hetwocn 
the  former  fires  and  that  charged  in  the  indictment.  There  was 
no  legitinuite  ])urposc  for  which  the  jury  could  consider  the  evi- 
dence, and  as  it  was  in  the  case,  Avhether  \.'ith  or  without  ohjec- 
tion,  the  request  was  proper,  and  should  have  heen  charged. 

(2)  The  People  called  two  witnesses,  who  testified  that  in 
the  month  of  Xoveniher — some  four  months  after  the  fire  in 
question — they  were  attracted  by  noise  in  the  defendant's  house ;  • 
that  they  lieard  the  sound  of  his  voice  and  the  screams  of  a 
■woman  that  they  supposed  to  he  Xora  Cronin ;  also  the  breaking 
of  china,  and  then  the  fall  of  some  heavy  body  on  the  fioor.  In 
a  short  time  after,  the  defendant  came  to  the  kitchen  door,  with- 
out his  hat.  The  testimony  was  received  against  the  defend- 
ant's objection  and  exception.  There  was  only  one  inference 
from  the  testimony,  and  that  was  that  the  defendant  was  guilty, 
on  the  occasion  testified  to  by  the  witnesses,  of  inflicting  physical 
violence  upon  a  woman  who  was  a  seiwant  in  his  household. 
If  that  fact  was  a  reasonable  conclusion  from  the  circumstances, 
it  is  quite  difficult  to  see  what  bearing  it  had  upon  the  issues  in 
the  case.  The  learned  district  attorney  reasons  that,  inasmuch 
as  this  woman  submitted  to  physical  violence  at  the  hands  of 
the  defendant,  it  must  follow  that  she  would  be  likely,  through 
fear  or  some  other  influence,  to  become  an  instrnmont  in  the 
execution  of  his  purpose  to  commit  the  offense  for  which  he  was 


11 

in' 

! 


i 


708 


AMERICAN  CRIMINAL  REPORTS. 


I 


«4 

9^1 

mi'\ 

\m  ■* 

3  i 

on  trial.  We  do  not  think  that  the  inference  naturally  pro- 
coeds  from  the  fact  sought  to  be  proved.  Indeed,  a  conclusion 
quite  the  contrary  might  be  drawn  with  as  much  reason  from 
the  circumstances,  since  it  could  be  said  with  at  least  as  much 
force  that  the  dofoiidant  had  never  trusted  such  a  dangerous  se- 
cret to  one  to  whom  he  had  given  so  much  cause  for  rosentment, 
and  who  would  l»e  likely  to  seek  for  opportunities  of  revenge. 
The  truth  is  that  the  circumstance  had  no  bearing  on  the  case 
one  way  or  the  other,  and,  since  it  presented  the  defendant  to 
the  jury  in  a  very  unfavorable  light  with  respect  t(j  a  transac- 
tion foreigTi  to  the  issue,  should  have  l)een  excluded.  The  fact, 
if  ti'ue,  that  the  defendant  was  in  the  habit  of  inflicting  eastiga- 
tion  upon  a  domestic  under  such  circumstances  plainly  U'lided 
to  create  prejudice  against  him  with  the  jury. 

(•})  The  bishop  of  the  diocese,  who  was  the  defendant's  of- 
fioial  superior  in  the  church,  was  called  as  a  witness  by  the  pros- 
ecution, and  produced  a  letter  which  he  had  written  to  the  de- 
fendant under  date  of  July  11,  1895,  which  the  district  attor- 
ney gave  in  evidence  under  objection  and  excxqition  of  defend- 
ant's counsel.  The  body  of  the  letter  is  in  the  following  w(U'ds: 
"Of  late  so  many  complaints  have  come  to  me  of  your  repeated 
and  public  drunkenness  that  I  cannot  close  my  eyes  any  longer 
to  vour  conduct.  I  now  ijive  von  warning  that  if  von  do  not 
quit  the  use  of  intoxicating  drinks  altogether,  and  refonn  your 
life,  I  shall  be  obliged  to  send  you  to  a  hoiise  of  correction,  ami 
remove  you  from  the  charge  of  souls.  Your  usefulness  in  your 
])rescnt  mission  is  at  an  end,  and  the  sooner  you  seek  some  other 
field  of  work  the  better  it  will  be  for  yourself  and  for  religion.' 
It  cannot  be  doubted  that  this  letter,  coming  from  such  a  source, 
must  have  had  great  weight  and  influence  with  the  jury.  It  was 
the  opinion  of  the  bishop,  deliberately  formed,  with  respect  to 
the  defendant's  life  and  general  conduct.  It  was  clearly  preju- 
dicial to  the  defendant,  and  should  have  been  excluded,  unless 
it  proved  some  fact  material  to  the  issue  before  the  jury.  The 
learned  district  attorney  defends  the  decision  Tinchir  which  it 
was  put  into  the  case  on  the  ground  that,  since  it  bnmght  home 
to  the  defendant  knowledge  of  his  relations  to  the  bisho])  and  the 
church,  and  pointed  to  his  removal  from  the  charge  of  the  parish, 
it  was  admissible  on  the  question  of  motive.    The  motive  attrib- 


I 


PEOPLE  V.  FITZGERALD. 


ro9 


iited  to  the  defendant  was,  as  we  have  soon,  the  dosirc  to  pos- 
sess himself  of  the  money  represented  by  the  polieies  of  in.„r- 
ance.  One  of  these  p.,lieies,  for  $1,500,  was  issued  more  than 
two  years  before  the  fire.  Three  more  were  issued  for  $4  000 
in  the  aggregate,  on  July  10,  1895,  seven  days  bef-re  the  fire. 
The  defendant,  when  he  procured  these  last  policies,  must  have 
conceived  the  design  to  destroy  the  building,  if  at  all,  and  hoi.ee 
a  letter  subsequently  written  by  the  bishop  and  received  by  the 
defendant  could  not  have  influenced  his  design  either  in  the  con- 
ception or  execution.  It  is  not  conceivable  that  he  supposed  the 
throat  of  sending  him  to  a  house  of  correction  could  1«  executed 
against  his  will ;  and,  if  the  threat  nf  removal  had  any  influence 
at  all  upon  his  mind,  he  could  scarcely  expect  that  it  would  be 
delayed  so  long  as  to  enable  him  to  procure  the  money.  Tlio 
policies  would  not  fall  due  until  sixty  days  after  proofs  of  loss, 
and  there  might  be  further  delay  and  litigation  before  payment.' 
The  local  agents  of  the  companies  were  not  his  friends!  Tlio 
bishop  himself  was  one  of  the  trustees  of  the  corporation,  with 
power  to  interfere  at  any  time  to  prevent  the  diversion  of  the 
money  to  the  defendant  by  notice  to  the  companies,  as  in  fact 
he  did  after  the  fire.  The  theory  that  this  letter  furnishe.l  the 
motive  for  the  commission  of  the  crime  charged  is  purely  specu- 
lative. The  reasoning  from  cause  to  effect  is  strained,  if  not  en- 
tirely fallacious,  and  it  cannot  be  accepted  in  law  as  a  justifica- 
tion for  the  admission  of  evidence  of  such  a  damaging  cliaracter 
to  the  defendant  when  it  was  foreign  to  the  issue.  It  had  no 
tendency  to  throw  light  on  the  real  question  of  fact  involved  in 
the  case,  and  could  only  prejudice  and  mislead  the  jury. 

(4)  The  theory  of  the  prosecution  that  the  defendant  had  a 
motive  to  procure  the  building  to  be  destroyed  in  order  to  reach 
the  money  dominates  the  whole  case,  and  he  had  the  right  to 
have  the  juiy  properly  instructed  upon  that  branch  of  the  case. 
The  defendant's  counsel  requested  the  court  to  charge  the  jury 
that  the  presumption  of  law  is  that  the  defendant  would  not 
steal  or  misappropriate  any  money  of  his  church  society  had  it 
got  into  his  hands.  In  res])onse  to  such  request  the  court  said: 
"There  is  no  such  rebuttable  presumiition  of  law  that  I  know  of. 
The  law,  on  the  contrary,  sui)poses  that  men  will  sometimes  mis- 
appropriate, and  for  that  reason  statutes  arc  enacted  for  the 


III 


i 


710 


AMERICAN  CRIMINAL  REPORTS. 


i 


iJUiiislinunt  of  gnuid  larceny.  I  do  not  think  it  can  be  said  tliat 
tliere  is  a  prosuniption  of  law  that  men  will  not  do  wrong;  there 
is  a  presumption  of  law  that  men  arc  innocent  \intil  their  guilt 
is  eutalilished."  To  the  refusal  to  charge  as  recpicsted  and  to 
the  charge  as  made  there  was  an  exception.  We  think  the  ex- 
ception presents  a  material  legal  error.  The  learned  judge  was 
not  re(|uest(!d  to  charge  that  the  presumption  referred  to,  or 
any  dtiier  ])resumi)tit)n  in  the  case,  was  of  such  a  character  as 
\o  1)0  cdJK'lnsive.  The  recpiest  expressed  a  correct  hv^al  principle, 
applicable  to  the  case,  and  the  charge  as  made  could  scarcely  fail 
to  imin'oss  the  jury  with  the  idea  that  it  was  their  duty  to  as- 
sume, in  their  deliberations,  the  existence  of  a  principle  just  tho 
contrary. 

('»)  It  appeared  incidentally  in  the  case  that  the  defendant 
appeared  before  the  gi'and  jury  as  a  witness.  That  body  was 
engaged  in  the  investigation  of  the  charge  against  the  Cronins 
and  John  Doe.  Tho  co\irt  was  requested  by  the  defendant's 
counsel  to  instruct  the  jury  that  his  failure  to  testify  at  the  trial 
in  his  own  behalf  did  not  create  a  presumption  against  him  and 
the  court  thereupon  proceeded  to  charge  as  follows:  *'I  have  been 
requested  to  charge  you,  gentlemen,  that  the  fact  that  the  (U;- 
fendant  went  vohmtarily  before  the  grand  jur^',  and  told  his 
story,  but  has  not  taken  the  witness  stand  here,  should  not  raise 
any  presumption  against  him.  That  is  true,  gentlemen.  Tho 
defendant  had  a  right  to  go  before  the  grand  jury,  and  make 
his  statement  there,  and  he  had  a  right  to  change  his  mind,  and 
not  take  the  stand  here  in  this  acti(m,  and  the  law  savs  that  no 
presumption  shall  attach  to  his  failure  to  take  the  stand  on  his 
trial.  That  statute  does  not  say,  however,  that  the  jury  shall 
consider  all  of  the  evidence  as  denied  hy  him,  which  he  might 
deny  if  he  took  the  stand.  It  does  not  incorporate  in  the  evi- 
dence a  denial  which  is  not  there.  It  simply  says  that  the  jury 
shall  consider  the  evidence  as  it  is,  not  strengthened  or  v.eak- 
ened  by  the  fact  that  the  defendant  df)es  not  take  the  stand.  It 
does  not  say  that  the  evidence  shall  be  the  same  as  if  it  con- 
tained a  denial  by  him ;  it  does  not  say  that  the  jury  shall  pre- 
sume that  the  defendant  would  deny  all  the  incriminating  facts 
if  he  took  the  stand.    It  says  that  the  jury  are  not  to  presume 


PEOPLE  1-,  FITZGERALD. 


711 


. 


that  ho  would  deny  or  admit  any  of  the  evidoncc,  but  that  tho 
jury  v.'.mt  comUU'r  tJio  evidoncc  aa  it  standi,  uiiaflFor.to.l  by  tlio 
fact  that  the  defendant  does  not  take  the  stand."  To  tlds  p,,!'- 
tion  of  the  cliarge  the  defendant  duly  excepted.  In  tlio  trial  of 
a  eriuiiiujl  case  it  ean  never  be  necessary  U,  add  anytliiuf.  to  tlio 
plain  and  simple  language  of  the  statute  on  this  subject.  Tbc! 
fact  that  the  accused  does  not  testify  in  his  own  behalf  camiot  bo 
permitt(>d  to  create  any  presumi.tion  against  him.  That  is  tho 
])laiu  numdate  of  the  law,  and  the  Inrce  of  the  pn)p..siti(m 
fihould  ruit  bo  weakened  and  destroyed  with  the  jury  by  (pialilV- 
ing  words.  The  learned  judge,  in  contrasting  the  case  as  it  was 
with  the  case  as  it  would  have  been  if  the  defendant  had  taken 
the  stand,  must  have  left  the  impression  on  the  minds  of  the 
jury  that,  after  all,  something  was  to  be  taken  against  the  de- 
fendant by  reason  of  his  (miissidu  to  testify,  and  iheivfdre  this 
part  of  the  charge  was  open  to  objection. 

(0)  The  school  that  was  conducted  in  the  building  in  ques- 
tion was  under  the  charge  of  the  sisters  of  charity,  and  three  or 
four  of.  these  ladies  were  called  as  witnesses  f(ir  the  People. 
AVbilc  they  all  testified  with  a  prudent  caution  and  in  gnarded 
language,  it  is  plain  that  their  relations  with  the  defendant  were 
strained.  Their  testimony,  much  of  which  was  received  under 
objection  and  exception,  presented  the  defendant  to  the  jury  as 
a  clergyman,  supposed  to  be  engaged  with  them  in  a  conuncn 
work,  but  who  was  rude  in  his  behavior,  arliitrary  and  unrea- 
sonable in  the  exercise  of  power,  regardless  of  their  just  riglits 
and  feelings  and  of  the  success  of  tho  work  in  which  they  were 
engaged.  All  this  inay  bo  true,  but  it  had  no  bearing  on  the  real 
issue  in  the  ease,  and,  since  it  tended  to  excite  prejudice  against 
the  defendant,  should,  we  think,  have  been  excluded.  The 
learned  district  attorney  defends  the  ruling  under  wiiich  this 
class  of  testimony  was  admitted  on  the  same  ground  as  tho  letter 
of  the  bishop  alread}'  referred  to.  The  testimony  is  of  tlie  same 
general  character,  and  points  in  the  same  direction.  In  one  case 
the  opinion  of  the  bishop  with  reference  to  the  defendant's  life 
and  general  conduct  was  placed  bett.re  the  jury;  in  the  other 
the  opinions  of  the  sisters  of  charity.  These  opinions,  whether 
right  or  wrong,  were  not  evidence  against  the  defendant.     It 


712 


AMERICAN  CRIMINAL  REPORTS. 


wns,  of  coiirso,  roinpotent  for  the  People  to  prove  by  tliose  wit- 
iipsflcs  nny  iiuilcrial  fact,  niul  so  fur  as  the  testimony  rolatctl  to 
the  UHo  ami  diaractor  of  the  building,  the  time  whon  the  school 
closed,  and  the  person  who  had  general  charge  at  night,  it  was 
atlmissible.  ]Jut  the  specitic  acts  and  inten'iews  of  the  parties, 
retlecting  upon  the  defendant's  general  conduct,  were  irr«'levant. 
It  would  have  been  quite  as  competent  for  the  People  to  call  wit- 
nesses to  prove  the  defendant's  general  bad  character.  That  was 
virtually  what  was  acconii)lished  by  the  proof  of  many  of  the 
coUa.teral  facts  and  specitic  acts  and  transactions  in  which  the 
case  abounds.  If  they  had  any  legal  relation  to  the  criminal 
act  charged,  it  would  then  bo  the  defendant's  misfortii.ie,  due 
entirelv  to  his  own  disregard  of  the  moral  code.  Tint,  since  thev 
had  no  legitimate  bearing  on  the  fact  in  issue,  within  the  r\des 
of  law  to  which  we  have  referred,  the  People  had  no  right  to 
prove  indirectly  what  they  could  not  have  been  pei'mitted  to 
show  by  direct  i)roof,  and  that  was  the  plain  tendency  of  the 
evidence. 

(7)  The  Peo])lo  called  .as  a  witness  one  of  the  members  of  a 
law  firm  with  whom  the  defendant  left  the  insurance  policies 
for  collection  after  the  fire,  and  proved  that  fact  and  the  various 
steps  taken  to  collect  the  loss.  The  testimony  tended  to  sustain 
the  theory  of  the  prosecution  that  the  purpose  of  the  defendant 
was  to  possess  himself  of  the  insurance  money.  On  cross-exam- 
inaticm  the  defendant's  counsel  asked  the  witness  if  it  was  not 
the  fact  that  the  defendant,  when  he  left  the  policies  in  his 
hands  for  collectitm,  requested  that  the  money  Avhich  should  be 
collected  on  them  should  be  paid  over  to  the  bishop.  The  ques- 
tion was  objected  to  by  the  People,  and  exclmlod  under  excep- 
tion. The  question  related  to  the  very  transaction  that  the  wit- 
ness had  descrilxid,  and  bad  a  plain  tendency  to  explain  or  mod- 
ify it.  The  defendant  had  a  right  to  repel  the  inference  Avhich 
the  jury  were  asked  to  draw  from  the  fact  that  he  had  delivered 
the  policies  to  the  firm  for  collection,  and  hence  the  question 
was  })roper,  and  the  ruling  excluding  it  error. 

There  are  other  questions  in  the  ease  which,  if  they  stood 
alone,  could  not  well  be  overlooked;  but,  since  they  may  not 
arise  on  another  trial,  it  is  unnecessary  to  prolong  the  discussion. 


PEOPLK  V.  TUl'J'KU. 


Tia 


The  ju<lgniont  should  be  revcr.o.l,  and  tho  case  v,man.\.\  fur 
a  now  trial. 

All  concur.    Judgment  reversed,  etc. 

,  ,^°''f--^'"^'"°P«'-  <^ross.examination  as  to  vhvther  a  defnula„t  on 
trial  had  been  disbarred,  e.^elled  fron  a  ckurrU,  e/r.-On  he  ame 
ine  as  the  foregoing  case  is  People  v.  Burthy,  by  tho  same  '  „t  Tu 
he  same  year,  156  N.  Y.  237.  50  N.  E.  Rop.  8(.0.  Defendant  was  an  at- 
torney  at  law.  and  was  convicted  of  stealing  the  money  of  a  .Hent 
The  trial  court  permitted  him  to  be  cross-examined  as  to  his  being  ex- 
polled  from  the  Baptist  church,  and  what  communications  he  ad- 
dressed to  the  church;  and  also  to  explain  on  what  ground  a  .lisl.ar- 
ment  proceeding  against  him  was  based,  covering  various  specifica- 
tions of  difforent  charges. 

It  was  held  that  whether  or  not  he  had  been  expelled  from  a  church 
was  wholly  irrelevant  to  the  issue,  and  the  prosecution  liad  no  rlgh» 
to  cross-examine  him  as  to  such  matters;  and  that  it  was  gross  error 
to  perm'it  cross-examination  of  him  as  to  the  particular  charges  in  the 
disbarment  proceedings.  Also  a  letter  was  received  in  evidence  writ- 
ten to  the  prosecuting  witness  by  an  attorney  somewhat  connected 
with  proceedings  concerning  the  transactions  out  of  which  the  prose- 
cution arose,  expressing  opinions  derogatory  to  the  defendant's  in- 
tegrity.   This  was  held  to  be  prejudicial  error. 


Peoplk  v.  Tupper. 

122  Cal.  424—55  Pac.  Rep.  125. 

Decided  November  26,  1898. 

Trial:  Bue  process  of  late— Temporary  absence  of  the  judge. 

For  the  presiding  judge,  during  the  argument  on  a  trial  for  felony, 
to  absent  himself  from  the  court  room  for  twenty  minutes  out  of 
sight  and  hearing  of  the  proceedings,  is  to  try  the  accused  with- 
out due  process  of  law. 

Appeal  from  Superior  Court  of  Los  Angeles  County ;  Hon. 
B.  N.  Smith,  Judge. 

Colonel  L.  Tupper,  convicted  of  felony,  appeals.    Eeversed. 

Bernard  L.  Mills,  for  the  apiiellant. 

W.  F.  Fitzgerald,  Atty.  Gen.,  and  Charles  E.  Jackson,  Dept. 
Atty.  Gen.,  for  the  People. 


ill 


AMERICAN  CRIMINAL  REPORTS. 


Gauouttk,  J.  Defendant  wp.o  convicted  of  a  felony,  and,  as 
gvouiul  for  a  new  trial,  he  silieged  by  affidavit,  mIucIi  was  not 
contradicted,  that  duriiio'  the  argument  of  the  case  to  the  jury 
the  judge  absented  himself  from  the  court  room  for  the  period  of 
twenty  minutes.  It  was  also  alleged  by  the  affidavit  that  diiring 
such  absence  the  judge  was  out  of  sight  and  hearing  of  the  pro- 
ceedings going  on  within  the  court  room.  The  foregoing  facts 
being  undisputed,  we  are  fully  satisfied  they  demand  a  retrial 
of  the  case.  The  argument  of  the  case  to  the  jury  is  as  much  a 
part  of  the  trial  as  the  introduction  of  evidence.  And  evidence 
may  be  introduced  before  the  jury,  in  the  absence  of  the  judge, 
if  the  practice  here  pursued  may  be  hold  justified  within  the 
law.  It  is  hardly  necessary  to  present  either  argument  or  au- 
thority to  show  that  neither  of  those  practices  can  be  justified. 
The  judge  is  a  component  part  of  the  court.  There  can  be  no 
court  without  the  judge.  And  all  that  was  done  in  the  absence 
of  the  judge  Avas  in  fact  done  in  the  absence  of  the  court.  A  de- 
fendant convicted  under  such  circumstances  lias  been  deprived 
of  his  liberty  without  due  process  of  law.  As  fully  snpjxtrting 
these  view:*,  we  cite  O'lirien.  r.  People,  17  Colo.  SGI,  .31  Pac. 
■Rep.  2S0;  Turhenlle  v.  Sfale,  50  ^liss,  703;  Stale  v.  lieuerman 
(Kan.  18!'8),  53  Pac.  Tiep.  874.  The  judgment  an<l  order  are 
reversed,  and  the  cause  remanded  for  a  new  trial. 

Van  Ft-kkt.  J.,  and  Harrison,  .T.,  coneurred. 

Note  (by  J.  F.  G.). — Quite  similar  to  the  above  is  the  case  of  Thomp- 
son V.  People,  144  111.  378,  32  N.  E.  Rep.  908  (decided  in  1893).  where 
a  conviction  for  assault  with  intent  to  commit  murder  was  reversed 
because  the  trial  judge  was  in  his  chambers  during  the  argument  of 
counsel,  preparing  the  Instructions  Tor  the  jury,  and  did  not  hear  the 
argument.     In  reversing  the  convic  ion  the  court  said: 

"Several  errors  are  relied  upon  by  counsel  for  the  plaintiff  in  error 
to  reverse  the  judgment,  but  we  w'll  only  consider  one  of  them,  as 
that  is  conclusive  of  the  case.  It  appears  from  the  bill  of  exceptions 
contained  in  the  record  that  during  the  argument  of  the  case  before 
the  jury,  the  presiding  judpe  left  the  court  room  and  entered  his  pri- 
vate room,  and  remained  out  of  the  court  room  during  the  entire  clos- 
ing argument  of  the  State's  Attorney.  It  is  true  the  judge  was  in  a 
private  room  adjoining  the  court  room,  preparing  instructions  to  be 
siven  to  the  jury,  but  he  could  not,  and  as  appears  from  the  record, 
did  not  hear  the  argument  in  the  jury,  and  during  the  closing  argu- 
ment repeated  objections  wert  interposed  to  remarks  of  the  State's 
Attorney,  but,  as  the  judge  holding  the  court  was  al)sent  from  the  court 


PEOPLE  V,  TUPPER 


rio 


Y,  and,  as 
1  was  not 

the  jury 
period  of 
at  during 
f  the  pro- 
)ing  facts 

a  retrial 
IS  much  a 

evidence 
he  judge, 
itliin  tlu) 
nt  or  au- 
justified. 
■an  be  no 
B  absence 
t.  A  de- 
dopvived 
ip])()rting 

31  Pac. 
'eiiennan 
Drder  are 


of  Thomp- 
3),  where 
i  reversed 
niment  of 
:  hear  the 

t  in  error 

them,  as 

jxceptlons 

ise  before 

(1  his  pri- 

ntire  clos- 

was  in  a 

3ns  to  be 

le  record, 

iing  argu- 

le   State's 

the  court 


room  and  there  was  no  presiding  judge  present  to  pass  upon  the  ques- 
tions raised  or  attempted  to  be  raised,  they  were  never  decided  On 
the  trial  of  a  criminal  case  before  a  jury  the  defendant  has  a  right  to 
be  heard  before  the  jury  in  person  or  by  counsel,  as  he  may  elect,  and 
the  People  have  a  right  to  be  heard  through  the  State's  Attorney  or 
such  other  person  as  may  be  selected  for  that  purpose.  This  is  a  right 
guaranteed  by  law.  Indeed,  the  argument  before  the  jury  is  a  part  of 
the  trial  of  a  cause,  as  well  as  the  introduction  of  evidence  to  prove 
the  innocence  or  guilt  of  a  defendant  or  any  other  fact  at  issue  on  the 
trial.  If  the  presiding  judge  may  leave  the  court  room  and  engage  in 
other  business  during  the  argument  before  the  jury,  he  may  upon  the 
same  ground  leave  while  the  evidence  is  being  introduced  during  the 
progress  of  the  trial  at  any  other  stage  of  the  proceeding.  Under  our 
system  of  practice  in  the  circuit  court,  during  the  progress  of  any  ju- 
dicial proceeding,  the  law  requires  a  presiding  judge  to  sit  during  each 
and  every  stage  of  such  proceeding,  whether  it  be  a  jury  trial  or  some 
other  proceeding  in  court,  and  the  presence  of  the  judge  cannot  be  dis- 
pensed with.  The  rule  here  announced  is  fully  sustained  by  Meredith  v. 
The  People,  84  111.  479,  where  it  was  held  that  the  presence  of  the  judge 
during  the  argument  of  a  criminal  case  could  not  even  be  dispensed 
with  by  consent  of  the  parties.  In  this  case,  however,  tliere  was  no 
consent.  Had  the  judge  stepped  out  of  the  court  room  into  his  private 
room  for  a  short  time,  where  he  could  still  hear  the  argument  and 
where  he  would  have  been  in  a  position  to  pass  upon  any  question  which 
might  properly  arise  in  the  argument,  we  are  not  prepared-  to  say  that 
an  error  would  have  occurred.  But  such  was  not  the  case  here;  no  part 
of  the  closing  argument  for  the  State  was  heard,  and.  although  several 
objections  were  made  to  different  portions  of  the  argument,  they  were 
not,  on  account  of  the  absence  of  the  judge  from  the  court  room,  passed 
upon  or  decided.  Under  the  law  the  defendant,  who  was  on  trial  for  a 
serious  crime,  one  which  deprived  him  of  his  liberty,  had  the  right  to 
the  presence  of  the  presiding  judge  during  the  argument  of  the  case 
before  the  jury,  and  the  absence  of  the  judge  was,  in  our  opinion,  an 
error  of  sufficient  magnitude  to  reverse  the  judgment.'" 


8 


:mi  I 


LNDEX. 


References  are  to  paces. 
ABATEMENT—  ^ 

verification  of  plea  in 

ABORTION—  ■ ^ 

child  alive  or  not-Defendant  entitled  to  an  instruction  that 

unless  alive  the  offense  was  not  committed    °'''^""'°°  ^''^^     , 
death  of  a  woman  not  quick  with  child  resulting  from' would 
be  manslaughter  rather  than  murder  . 

question  concerning,  discussed  in  a  homioide"c^se 447 

not  necessary  to  save  life,"  should  be  pleaded  and  proved""    10 
statutory  words,  former  acquittal,  etc.. . . ...  v^ovea. ...    10 

indictment  and  evidence  insufficient  on  a  charge  of 

ABUSIVE  LANGUAGE—  

in  hearing  of  a  family 

ACCESSORIES—  ' 

abolishing  distinction  between  principals  and  accessories  does 

funf^        V'mI,''^*  ^^^  *'^'*'  ""'t  ^^  V^^^^^'^-  the  accessorial 
facts  must  still  be  pleaded 13   ^y 

both  principal  and  accessory  being  arrested", 'the  "deati," of  the' 

former  abates  the  prosecution  (Texas) 

ACCOMPLICE— 

admissions  of  during  continuance  of  the  common  design   ad- 
missible   

uncorroborated,  insufficient  !!!......'... '. '. . . .... 

husband  as,  in  rape ....!!........... 664 

ADMISSIONS.     See  Evidence;   Confessions. 
ADULTERY— 

a  charge  of,  "without  living  together,"  not  sustained  by  proof 
of  living  together 23 

is  committed  in  living  together  under  a  second  niaiii age' after 
a  decree  of  divorce,  but  after  the  same  has  been  vacated 21 

not  necessary  that  the  particeps  criminis  should  be  indicted 
also    24 

ALIBI— 

cases  involving 31,  33,  36,  44,  47,  51,  74 

general  notes  on  77-88 

the  doctrine  of  the  foregoing  cases  is  that  an  alibi  is  not  an  af- 
firmative defense;  that  the  burden  of  proof  that  the  (l°l'endant 
was  present  at  the  place  of  the  crime  when  the  same  was  com- 
mitted rests  upon  the  prosecution,  being  one  of  the  necessary 
elements  of  its  case;  that  no  burden  to  prove  an  alibi  in  any 
case  rests  upon  the  defendant;  and  that  a  reasonable  doubt 
as  to  the  presence  of  the  defendant  at  the  time  and  place  of 
the  crime  entitles  him  to  an  acquittal. 
for  an  exhaustive  review  of  the  doctrine,  see  State  v.  Taylor  51-73 

for  definitions  of,  see 47,  49 

for  erroneous  instruction  that  an  alibi  is  a  ircll  worn  defense, 
see    


503 


11 


19 


20 


123 

506 


erroneous  Instructions  on 31,  33,  36,  44,  59, 

Instructions  placing  burden  on  defendant  not  cured  by  one  on 
reasonable  doubt,  these  being  contradictory 70, 


76 
60 

71 


!    ? 


718 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pages. 

ALIBI  (continued)  — 

see  further  discussion  in  notes 77-8S 

doctrine  In  Texas 79 

In  Oregon   80 

in  Indiana    81 

in  Alabama 82 

in  Illinois  83 

in  Iowa    8G 

inOliio    46 

ARGUMENT  OF  COUNSEL— 

cases  on 88,  102,  106,  lOS 

general  notes  on 114-124 

it  is  reversible  error  for  prosecuting  counsel  in  addressing  the 
jury  to  appeal  to  passion,  prejudice,  popular  clamor  and  to 
threaten  the  jury  with  popular  denunciation  if  ♦hey  acquit 

defendant  88 

the  approval  of  the  court  intensifies  such  error,  and  a  subse- 
quent instruction  may  not  cure  the  injury 88 

where  the  court  ignored  defendant's  objections  to  such  course, 
he  need  not  continue  to  object,  but  the  court  will  c*.naider  all 

such  remarks  as  objected  to 88 

reasons  why  It  should  be  unnecessary  to  object  in  such  cases, 

note    102 

error  to  indirectly  reflect  upon  the  defendant  because  he  did 

not  testify   102 

same — to  argue  that  because  defendant  did  not  produce  a  certain 
witness,  the  presumption  of  law  was  that  the  witness'  testi- 
mony would  have  been  adverse,  etc 108 

same — to  refer  to  former  trials  and  convictions 106 

same — to  refer  to  another  indictment 119 

same — to  accuse  of  other  crimes  in  opening  the  case 116 

same — to  urge  conviction  because  defendant  can  appeal 118 

same — to  argue  that  claiming  a  legal  privilege  is  evidence  of 

guilt  123 

same — to  utter  unfounded  Insinuations  of  bribery  against  wit- 
nesses      122 

generally,  for  the  reason  of  the  rule  forbidding  such  improper. 
Inflammatory  and  sinister  remarks,  and  statements  outside  of 
the  record,  including  general  vilification  and  abuse  of  the  de- 
fendant, and  references  to  mol)s,  burnings,  vigilance  com- 
mittees, "boodle  prosecutions,"  etc.,  see  the  general  notes  on. 

ARRAIGNMENT.    See  Pleading  and  Pkactice. 

ARSON— 

cases  on   125,   130 

notes  on   134-136 

a  detached  freight  car,  on  posts,  may  be  averred  to  be  a 
"freight  warehouse"  and  an  "outhouse,"  .and  may  be  a 
"house,"  within  the  statute;  and  it  is  not  necessary  to  allege 

whether  the  same  is  located  in  a  city,  town  or  village 125 

a  jail  may  be  a  dwelling  house 130 

the  ownership  thereof  should  be  laid  in  the  sheriff  when  he 

dwells  therein  130 

as  to  defective  indictment;  confessions;  copies  of  policies  ad- 
missible, and  copies  of  copies  not  admissible,  see  notes  on. 

ASSAULT  WITH  INTENT  TO  KILU  ETC.— 

cases  on 136,  140,  14.').  148,  153 

notes  on 144,  155-158 

wounding  one  of  a  crowd  of  "H  .lloweeners"  bent  on  destroy- 
ing property   136 


y 


77-88 

..  79 

. .  80 

..  81 

. .  82 

..  83 

..  8G 

..  46 


ubse- 

88 

urse, 

;r  all 

88 

•ases, 

102 

s  did 

•  1  •  •  • 

102 

rtain 

testi- 

108 

106 

119 

116 

118 

ce  of 

123 

:  wit- 

122 

125 
130 

130 


148. 

153 

,  155- 

-158 

troy- 

13G 

INDEX.  ^^y 

References  are  to  pages. 

ASSAULT  WITH  INTENT  TO  KILL.  ETC.   (continiiprl)  — 

held,  in  above,  tliat  the  question  of  the  defendant's  intent 
should  have  been  fairly  presented  to  the  jury,  whkh  was  not 
done;  and  also  j,- 

held,  that  such  an  assemljly  is  an  unlawful  mob,  and  that  one 
may  use  all  necessary  force  to  protect  himself  and  nronerty 
from  injury  at  its  hands 135 

one  assaulted  is  not  obliged  to  retreat,  but  may  repel  foive 
with  force,  nor  must  he  first  determine  whether  he  is  in  dan- 
der of  death  or  great  bodily  injury 140 

shooting  to  scare  and  not  to  kill,  not  assault  to  murder;  seel;- 
ing  a  meeting  that  results  in  the  difficulty,  does  not  suspend 
the   right  of  self-defense 143 

reversed  for  failure  to  give  instruction  on  aggravated  assault"  i;:i 

"great  bodily  injury,"  discussed  and  applied 145 

ATTEMPT  TO  RAPE— 

evidence  not  showing  threats,  force,  or  attempt  or  intention  to 
use  force,  but  solicitation  only,  cannot  sustaii:  conviction  for  G57 
BAIL— 

should  not  be  unreasonably  withheld 275 

forfeiture  of,  see  Scihe  Facias. 

BASTARDY— 

record  of  judgment  in  a  civil  cawe  not  competent  evidence  in 
a  criminal  case 158 

BIGAMY— 

on  trial  for,  oral  evidence  of  divorce  of  defendant's  first  wife 
before  her  marriage  to  him.  not  admissible  to  prove  her  legal 
capacity  to  marry  him.     Proof  of  the  record  only  competent 

evidence    159 

nor  could  a  legal  presumption  of  his  death  arise  from  a  letter 

she  had  received  that  he  had  since  died 159 

a  common-law  marriage  held  to  be  bigamy  in  Michigan 163 

note  on  common-law  mar    .iges Iti5 

where  two  marriages  are  alleged,  the  presumption  of  legality 
of  each  is  equal,  and  both  must  be  proved, — \,y  such  evidence 

as  is  competent  to  prove  marriage  in  other  cases 169 

not  established  by  mere  proof  of  cohabitation  and  reputation..  169 
alleged  second  wife  cannot  testify  if  first  marriage  is  denied; 

but  if  it  is  clearly  proved  and  not  controverted,  she  may...  169 
husband  and  wife  not  competent  witnesses  for  or  against  each 
other  in  criminal  cases  at  common-law.  This  rule  is  based 
partly  on  the  legal  identity,  but  largely  upon  piihlic  pnUnn 
nor  will  consent  or  agreement  permit  the  violation  of  this 
rule.     See  notes  on  this  subject 174-177 

BILLS  OF  EXCEPTIONS.     See  Pi.tcAuiNO  anp  Practice. 

BRIBERY— 

Buflficiency  of  Indictment  under  Massachusetts  statute;  in  case 
of  a  juror,  need  not  aver  that  bribe  was  given  by  a  party  to 
the  action    ^  * ' 

where  an  alderman  solicited  a  bribe  to  "^vor  a  bid,  it  was  not 
necessary  to  allege  with  whom  he  had  the  "understanding 
and  agreement " •  •  •  •  ^"^ 

not  necesBary  that  the  ones  solicited  should  consent;  the  solid- 
tation  was  an  offense 179 

conversations  on  different  days  concerning  the  same,  but  parts 
of  the  same  transaction ; 

Immaterial  whether  the  bribe  was  to  influence  defendant  s  own 
vote,  or  to  cause  him  to  influence  the  votes  of  others i.» 


!| 


il 


720 


AMERICAN  CRIMINAL  REPORTS. 


m:4 


References  ore  to  pages, 

BRIBERY  (continued)— 

the  bids  referred  to  and  proceedings  of  the  council  relating 

thereto,  competent  evidence 179 

notes  on   191 

BURGLARY— 

the  breaking  and  the  intent  should  be  clearly  alleged 192 

a  crib  or  a  smokehouse  is  not  a  dwelling 192 

note  on  double  conviction  for  burglary  and  larceny 193 

where  a  t)oy,  through  the  suggestion  of  the  owner's  agent,  was 
induced  to  enter  a  building,  held  no  offense,  and  that  it  was 

a  reprehen8il)le  affair 193 

an  intoxicated  jerson  forcing  his  way  into  a  club-room  and 

saloon  where  he  had  been  accustomed  to  go,  is  not  burglary  198 
as  t3  burglary  at  common  law,  and  the  s|>eciflc  criminal  intent 
essential  in  various  crimes,  and  as  to  intoxication  negativ- 
ing such  intent,  see  notes 200-206 

CHANGE  OF  VENUE— 

should  have  been  granted  where  it  required  the  military  to 
l)revent   mob    vengeance 206 

same — where  many  disinterested  citizens,  giving  their  means 
of  information,  deposed  that  defendant  could  not  have  a  fair 
trial  because  of  universal  prejudice,  notwithstanding  the 
sheriff,  chief  of  police  and  district  attorney  swore  that  he 
could     207 

granting  same,  is  not  res  adiiidirnta  on  a  new  indictment  for 
same  offense;  nor  is  defendant  estopped  because  he  had 
promised  not  to  ask  for,  when  a  continuance  was  granted..   226 

see  also  notes 232 

CHARACTER— 

evidence  of  good,  by  defendant 226 

of  defendant,  not  in  issue 447,  482 

private  character  not  open  to  investigation  on  trial  for  a 
specific  crime 700,  note  713 

CHRISTIAN  SCIENCE— 

not  the  practice  of  medicine,  and  is  not  controlled  by  the 
statutes  regulating   it 238 

CONFESSIONS— 

inadmissible  when  obtained  by  hope,  favor,  flattery,  fear  or 

promises  192,  253,  275,  278,  279,  280 

so,  when  by  t  ricks   2G1 

same — when  by  detective  pretending  to  be  recruiting  agent  for 
a  band  of  outlaws,  whereupon  accused  made  statements  that 

he  had  coniniilted  many  desperate  crimes 261 

same—on  inducement  that  he  would  not  be  prosecuted  192 

same — on  promise  to  make  him  a  State's  witness  and  save  him 

from    prosecution    280 

but  where  obtained  by  artifice,  but  without  promises  or  induce- 
ments,  held    admissible    271 

error  for  the  court  in  charging  the  jury  to  designate  slate 
ments,  ma  le  by  defendants  in  teatifying  before  the  magis- 
trate, as  confessions    250 

before  its  admissior  it  should  be  shown  to  be  free  and  voltin 

tary  and  untainted  by  improper  influences  253 

prosecuting  officers  should  not  offer  when  not  voluntary 275 

not  admissible  as  to  other  crimes  2til 

Durden  is  on  the  prosecution  to  prove  that  it  was  freely  and 

voluntarily  made  before  its  introduction  207,  224 

notes    284 


II  \ 


INDKX. 


Refereiicos  ore  to  pagps. 


721 


ilating 

179 

191 

192 

192 

193 

It,  was 
It  was 

193 

im  and 
iirglary  198 
1  intent 
legal  Iv- 
200-206 


tary  to 
206 

■  means 
e  a  fair 
ing  the 
tliat  he 

, 207 

nent  for 
he  had 
ranted..   226 
232 

.,   220 

■  ■  ■  ■  '447,  482 
1   for   a 

00,  note  713 

by  the 
238 

fear  or 

,278,  279,  280 
201 

igent  for 

■nts  that 

261 

192 

save  him 

280 

indiu-e- 

271 

ito  state 
e  magis- 

250 

1(1  voUin 
253 

iry 275 

2t!l 

[eely  and 
. .  207,  224 
284 


CONFESSIONS  (continued)  — 

and  on  such  preliminary  inquiry  defendant  has  the  right  to 
cross-examine  and  introduce  rei)iutal  testimony— jiohvs' 

Bweat-l)ox  methods  condemned 

for  full  discussion  of  the  subjeit,  see  notes  ..!!  283- 

CONSPIRACY— 

mere  acquiescence  or  approval,  without  cooperation  or  agree- 
ment to  co-operate,  is  not  sufficient  

CONSTITUTIONAL  LAW— 

will  not  consider  its  constitutionality  where  the  case  pre- 
sented does  not  come  within  the  statute  •. 

criticism  on  this  position — note  

peddlers'  license  act,  \mconstitullonal  

act  of  Congress,  that  a  conviction  for  stealing,  eti'.,  i)roperty 
of  the  United  States,  thall  he  conclusive  evidence  of  the 
theft,  etc.,  on  the  trial  of  the  receiver,  held  unconstitutional 

Congress  cannot  abridge  the  rights  of  the  accused  to  examine 
the  witnesses  against  him    

where  one  was  convicted  of  selling  liquor  to  one  of  "divers 
other  persons"  authorized  by  statute,  held  un'onstitutional 

same — where  a  special  statute  siispended  the  requirement  to 
charge  a  particular  offense — note  

an  information  verified  on  information  and  belief  is  contrary 
to  the  United  States  constitution  

a  statute  held  unconstitutional  because  it  provided  for  special 
search-warrants,  for  special  interests — beer  bottles,  etc., — 
and  authorizing  complaints  upon  information  and  belief 

to  comply  with  the  constitution  a  criminal  complaint  must 
allege  the  facts   

parts  of  a  statute  may  be  constitutional  or  not,  according  to 
their  independent  operation.  If  they  depend  upon  each 
other,  the  whole  falls  

statute  giving  a  party,  cited  for  contempt,  a  jury  trial,  held 
unconstitutional   

same — giving  unwarranted  power  to  a  municipality  

CONTEMPT— 

constructive.  Is  of  a  criminal  nature  

the  affidavit  for,  is  jurisdictional,  and  the  facts  musi  be  set 
forth  with  the  same  certainty  as  in  a  criminal  prosecution, 
and  must  be  of  the  positive  personal  knowledge  of  affiant 
and  not  on  information  and  belief  

note    •  ■ • 

iwwer  to  punish  criminal  contempt  is  inherent  in  the  court, 

and  cannot  be  transferred  to  juries  by  legislation 

criticism  of  this  do<   rine— noff  •  • 

falsely  claiming  siiUncss  by  a  party  to  get  a  continuance  held 

to  be   • :■••• 

woman   having  custody  of  an    infant    taliing  it  beyond   the 

jurisdiction  of  a  court  for  its  bcinrtt.  held  on  error,  not  in 

contempt 

CORPVa  DELICTI—                                          ,               „        .  „,,^ 
need  not  be  conclusive,  but  the  evidence  of  surrounding  circum- 
stances may  create  a  sufficient  fonndaiion  to  Introduce  a 
confession    

when 'principal  counsel  for  defendant  in  a  b.imicide  trial  is 
taken  violentlv  sick  during  the  arc  "uis  to  the  .uiry,  it 
is  error  to  compel  him  to  argue  before  he  sufficiently  re- 
covers   therefrom    • 

Bee  also  AitcrxuMS  of  Counsel;  Riciiis  of  Accused. 

46 


287 
207 

:;95 


295 


23S 
250 
;!24 


V,0 
330 
346 
347 
349 

356 
355 


320 


303 
(;07 


298 


208 
301 


303 
31  !• 


303 
320 

135 
540 


722 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pngea. 

CRIMINAL  COMPLAINTS— 

essential  tacts  must  be  set  out 253,  356,  384,  38(> 

probable   cause  must   be   based   on   facts,   not   on    belief;    an 

opinion  under  oath  Insuffli tent 3(i6.  367 

contra    380 

but  see  notn 382 

must  comply  with  the  constitution 355,  35t> 

oniittinK  tlie  word   "did,"   vitiates 384 

olty  ordinances  must  be  set  out 385 

ready-made  omnibus  complaints  prejmred  to  cover  all   cases 

condemned   3<!f.,  377 

general  review  and  notes  309-380 

DEADLY  WEAPON.     See  Instiuctions. 

DECLARATIONS.     See  C()nfes,sio.ns;  Evidence. 

DEFENSE  OF  PROPERTY. 

cases  on   136,  681,  689 

DISCRETION— 

of  trial  judge  in  matters  of  fact 1 2.'» 

on  conflicting  evidence 22(5 

in  passing  upon  qualification  of  jurors 179,  690 

abuse  of  in  excluding  witness 261 

DIVORCE— 

as  affecting  prosecutions,  see  AiuLTEnv;  Bigamy. 

DRUNKENNESS— 

as  a  defense  against  criminal  intent,  see  Biuglary;  LAncEXY. 

DUE  PROCESS  OF  LAW— 

see    TruAF 713 

DYING  DECLARATIONS— 

not  unconstitutional.  The  provision  that  accused  must  be  con- 
fronted with  the  witnesses  against  him,  means  livinff  wit- 
nesses     , 487 

production  of  a  written  one  does  not  preclude  oral  declara- 
tions made  at  other  times 447 

should  not  be  taken  into  jury  room 447 

error  to  charge  that  the  absence  of  hope  in  the  declarant  is 
always  sufficient  to  cause  him  to  speak  the  truth;  there  is 
no  such  legal  presumption 447 

should  be  confined  to  the  fact  of  the  homicide  and  not  ex- 
tended to  prior  acts 33 

EMBEZZLEMENT— 

cases  on   386,  389,  391 

general  notes  on 395-402 

by  agent;  felonious  intent  essential,  notwithstanding  statute 
is  silent  as  to  Intent 386 

by  broker;  holding  difference  between  contract  and  sale  prices, 
as  commission,  not   embezzlement 389 

defendant's  claim,  in  good  faith,  that  he  had  a  right  to  appro- 
priate the  money,  negatives  criminal  intent 389 

common-law  doctrine  as  to  rights  and  responsibilities  of 
broilers,  auctioneers,  etc note  390 

approved  instruction,  that  felonious  intent  is  essential  at  time 
of  appropriation, — that  the  act  is  not  criminal  where  there 
is  an  honest  belief  of  right  to  api)ropriate vote  391 

admissions  by  one  partner,  made  long  after  the  alleged  em- 
bezzlement, not  admissible  against  the  other  partner,  be- 
cause (1)  one  cannot  criminally  bind  his  partner,  and  (2) 
they  are  not  part  of  the  jr.s  qvatw 391 

distinctions  between  embezzlement  and  larceny 395 


INDEX. 


723 


References  are  to  pngos. 
EMBEZZLEMENT  (continuod)  — 

''*'S"u"e^*  '^"^'^"^  '^  "°^  '*''*'^"''  ""'^"  *^^^  embozzloment 
essential  elements  of,  "and  np.^esslty'of  rloadinR'tlie'samV.  other-  ^^'' 
flctTon  "'^  °^'  ^^^  '"'''''"  ""'*"''''  ''""*'"''  "•'""  "  '''Sal 

by  public  officers .......!!!.".!.'.*.*.".'.'.". rr-^o^ 

a  (/e  facto  officer  may  be  guilty  of ...'.'.'.'.'. '  ^('w 

property  must  have  a  legal  utatiis  to  be  the  subjeVt  of 3')7 

there  must  be  a  duty  imposed  and  charged,  and  a  vlo'lati'oii 
thereof;  the  mere  failure  to  pay  over  money  is  not  a  crime- 
it  is  the  felonious  conversion  of  it  that  is  criminal  '  30^ 

cannot  embezzle  taxes  by  receiving  "saw  logs'  in  licii'tiicrpof'  3i)-) 
the  assignment  of  an  unmatured  obligation  is  not  enihezzle- 
ment  of  money;  and  the  acceptance  thereof  does  not  iniply 
that  the  acceptor  has  any  funds  whatever,  nor  that  he  will 

have  till  its  maturity 399 

admissibility  of  contracts  and  dealings  between  the  del'endaiit- 
agent  and  his  employer,  as  evidence,  discussed;  and  held, 
generally,  that  defendant  could  show  outside  of  written  con- 
tracts, authorization,  and  undei-slandings  with  prosecutor's 

agents,  to  expend  moneys  for  necessary  Incidentals 4(IO-402 

a  book  not  competent  evidence  against  a  public  officer  where 
it  was  not  shown  that  it  was  ever  in  his  possession,  nor 
through  whose  hands  it  had  passed  since  he  had  it,  nor  that 

it  was  in  the  same  condition  as  when  it  left  him 398 

ENTRAPMENT— 

Into  crime 193,  note  197 

ESTOPPEL— 

law  of,  does  not  apply  to  a  defendant  in  a  criminal  case 660 

EVIDENCE— 

the  jury  is  not  obliged  to  believe  uncontradicted  testimony fiSS 

one  cannot  bind  his  partner  criminally  by  his  admissions 391 

competent  as  res  gesUv  even  if  it  shows  another  crime 51 

declarations  of  an  accomplice  made  during  the  continuance  of 

the  common  purpose  admissible 12.") 

Incompetency  of,  waived  by  failure  to  object  lOS 

record  of  judgment  in  a  civil  case,  not  admissil)le  in  a  crim- 
inal   case    158 

the  acts  of  the  owner  of  stolen  cattle,  who  Is  Incompetent  as  a 
witness,  may  be  shown,  to  prove  absence  of  consent  on  his 

part    259 

evidence  which  fails  to  establish  a  fact  should  be  withdrawn 

or  stricken   out 261 

discretionary    with    court    to    have    differences   in    signatures 

pointed  out  on  enlarged  photos 442 

as  to  blank  check  torn  up,  etc 442 

stating  grounds  of  an  opinion  is  not  argumentative 442 

admissions  of  identity  obtained  by  tricking  party,  not  ad- 
missible      167 

objections    to   questions   put   by   the  court   should    state  the 

grounds  of  objection 442 

expressions  of  surprise  and  regret  by  the  defendant,  imme- 
diately after  the  act,  are  part  of  the  res  (lestw 461 

certain  admissions  not  res  (jest(r 391 

while  not  always  reversible  error,  it  is  improper  for  the  prose- 
cuting attorney  to  ask  irrelevant  questions 461 

defendant  has  a  right  to  crnss-pxamine  a  detective-witness  as 
to  the  terms  on  which  his  agency  worked  up  the  case,  and 
the  amount  of  remuneration  to  be  paid 468,  473 


721 


AMERICAN  CRIMINAL  REPORTa 


I 


m 

k 

i 


:i 


Refurences  are  to  paitea. 

EVIDENCE  (continued)— 

flight  is  simply  one  circumstance  to  be  considered  v/ith  others, 
and  the  motive  that  prompted  it,  as  tending  to  show  guilt..  475 

Improper  to  crops-examlne  defendant  as  to  various  alleged 
Illegal  acts  and  offenses,  and  require  him  to  give  the  particu- 
lars   thereof 482 

Improper  for  judge  to  state  what  evidence  was  given  on  a 
former    trial 487 

of  an  accomplice,  uncorroborated,  insufficient  to  sustain  con- 
viction      506 

thet  defendant  made  threats  in  two  conversations  that  he 
would  have  a  deal  with  some  one,  though  name  of  the  prose- 
cutor was  only  mentioned  in  one,  competent 588 

a  baptismal  certificate  is  not  competent  to  prove  the  age  of  the 
prosecuting  witness  in  a  rape  case 655 

where  defendant's  wife  was  allowed  to  testify  to  certain  facts, 
it  was  error  to  permit  her  to  be  cross-examined  on  prejudi- 
cial matters  not  germane  to  her  direct  testimony;  nor  could 
this  be  done  for  purposes  of  impeachment 518 

not  competent  to  show  that  years  before,  she  charged  her  hus- 
band (defendant)  before  a  magistrate  with  assaulting  her..  618 

"hearsay"  for  a  physician  to  testify  that  he  understood  that 
certain  money  paid  him  was  for  defendant 4 

also   "hearsay,"   see 226 

same  as  to  statements  of  a  woman,  not  a  defendant,  that  she 
was  accustomed  to  performing  operations  similar  to  the 
one    charged 4 

Improper  cross  examination;  prosecution"  has  no  right  to  sup- 
ply deficiencies  in  its  evidence  by  cross-examining  the  de- 
fendant     447 

same  in  compelling  defendant  to  give  particulars  of  charges 
of  disbarment  and  expul.;'on  from  church 713 

prosecution  not  entitled  to  show  as  part  of  its  case  that  de- 
fendant has  passed  under  assumed  names,  and  had  been 
arrested    for   drunkenness 447 

same  as  to  book  of  public  officer  on  trial,  see  EMnKz/r.EMENT. 

on  trial  for  burning  a  parochial  building.  It  was  error  not  to 
allow  defendant,  on  cross-examination,  to  ask  of  an  attorney, 
if,  when  he  turned  over  the  policy  to  him,  he  did  not  tell  him 
to  pay  the  money  to  the  bishop 700 

affidavit  for  continuance  admissible  on  question  of  sanity 525 

husband  and  wife  as  witnesses,  see  Bioamy,  and  notes  on  Hrs- 
nAND  AND  Wife 174-177 

EXPERT  EVIDENCE— 

not  necessary  to  identify  an  old  pocket-book 468 

undertaker's  assistant  not  an  expert  witness  as  to  when  rigor 

mortis  set  in,  especially  when  not  experienced  as  to  same..  468 
not  necessary  in  matters  of  common  observation;  and  who  are 

"experts," — note    474 

In  insanity  cases,  see  Insanity.  • 

EXTRADITION— 

the  right  of  one  extradited  Into  this  country  to  be  free  from 
arrest  for  any  other  charge  is  not  lost  by  his  returning 
whence  he  came,  and  coming  back  to  this  country,  during 
the  pendency  of  the  case 403 

FALSE  PRETENSES— 

cases  on 407,  409,  416,  417,  422 

general  notes  on 42'7-431 

obtaining  money  from  fiancee 407 


INDHX. 

ni-ft'iiMiccH  arc  to  paKt's. 

FALSE  PRETENSKS  (fonllniipd)  — 

man  bo  obtaining,  not  tiinisolf  a  false  tul'-n 

not  criminal,  wliere  Imsed  on  fiitu-c  lontiniji'iiiu'.s 

to  constitntp,  roliance  must  ho  placpd  upon  tlio  ivprrs.>nti"iVonV 
otherwise  tliere  is  no  oltunse;  and  sudi  la.t.  nuist  lio 
pleaded   ,,-    ^„^ 

not  in  drawing  a  chetdv  on  a  l)anlv  IlionRh  liio  accouiu  was 
overdrawn,  wlien  llie  drawer  liad  implied  authority  to  drnv 

where  defendant  had  drawn  on  a  Imnlc  lor  ynnrs,  and  ilic 
checlts  were  paid  when  the  aicotint  was  overdrawn  held 
that  he  had  implied  aiilliority  to  draw  and  was  not  ^iij'li\  of 

giving  a  cheelj  does  not  Imply  that  the  necossarv  funds  are 
then  on  deposit " 

must  he  f raudnlont  as  well  as  false 

no  offense  to  cniiae  a  man  to  pay  his  dehts,  or  live  iip  to  his 
contracts,  by  false  statements 

taldng  a  mortgage  upon  goods  sold  is  iiresnnVii'tivp'evi  iiMipe 
that  the  vendor  did  not  wholly  rely  ujjon  the  reiirnsontntions 
made    

do  not  apply  where  vendor  retains  title  in  himr.i'lf. .!!!.".,. ..'! 

declarations  made  by  defendant  a  year  after,  as  to  what  he  did 
with  the  goods  pun  based,  are  irrelevant 

Indictment  defective. — assign  and  transfer  of  note  not  equiva- 
lent   to    indorse.. 

the  venue  of  the  offense  should  be  cbarly  shown  in  some 
county  certain, — not  spread  over  several  louiuies 

for  Involved  and  contradictory  allei^ations.  see 

description  of  property,  see  Indictmkxt  and  iMdinrATiov. 

FAMILY— 

may  consist  of  a  portion  thereof .- 


■■.1  •* 


too 

41(j 


420 

\21 

122 
12;! 


427 
427 


■m 

43u 

430 

428 

42!> 
420 

11 


FORGERY— 

cases  on  4;]1,  432,  43^.  438,  440. 

general  votes  on 445 

a  writing  simply  giving  the  value  of  an  articl",  not  the  sub- 
ject of 

the  elements  to  in.1ure  or  defraud  must  api)enr  in  the  writing, 

or  in  extrinsic  averments 432.  434, 

a  letter  of  introduction  is  not imfc 

Innuendoes  are  essential  to  explain  obscure  writings...  431. 


412 
-448 

431 

439 
431 
432, 
438 


every  material  portion  of  the  alleged  forged  instrument  should 
be  set  out 13.'). 

variance   in   names 

a  writing  in  evidence  must  be  identified  as  the  one  pas='^d.... 

evidence  of  passing  similar  ti(lvets  on  the  same  day  adtnisHiiile 
to   show  pur])oso 

two  alleged  orders  being  found  on  defendant's  person,  chart-ed 
with  having  a  certain  forged  instnmienf  with  intent  to  iiMcr, 
etc.,  one  of  them  must  he  distinctly  identified,  to  justify  a 
conviction    

evidence  of  other  forgeries  not  admissible  unless  there  is  evi- 
dence tending  to  connect  defendant  therewith,  other  than 
suspicious  circumstances  

the  fact  that  a  blank  check  (since  destroyed)  was  found  in  a 
desk  "said"  to  have  been  used  by  defi^ndant.  not  compeii'nr. 
evidence  ^^'-^ 

making  alterations  in  a  deed,  after  some  partirr,  had  signed  il, 
but  before  its  legal  execution,  is  not  for.uery 

a  nudum  pactum  instrument  not  the  subject  of 


438 
432 
410 

436 


440 
442 

444 

4i3 
445 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


kf 


4^ 


1.0 


I.I 


11.25 


■tt  liii   12.2 

S*  Hi  *■ 
U   11.6 


-    6" 


Fhotographic 

Sdenoes 

Carporation 


23  WBT  MAM  STHfT 

WIISTII.N.V.  14SM 
(7U)t7a-4S03 


% 


726 


AMERICzVN  CRIMINAL  REPORTa 


References  are  to  pa^es. 

FORGERY  (continued)— 

"repugnancies;"  "variances;"  "uncertain  and  defective;"  "am- 
biguity"      446 

forging  a  name  to  a  receipt  on  a  postal  money  order  la  not 
forging  the  order 446 

FORMER  ACQUITTAL— 

an  acquittal  of  a  charge  of  adultery  is  a  bar  to  a  charge  of 
alleged  perjury  in  denying  the  adulterous  intercourse,  being 
res  ad  judicata  of  the  same  facts 625 

GAMING  TABLE— 

aiding  and  abetting  to  keep,  is  not  keeping 19 

HABEAS  CORPUS.     See  Peusoxal  Liijkkty. 

HABITUAL  CRIMINAL.    See  Larceny. 

HAWKERS  AND  PEDDLERS.      See  Constitutional  Law. 

HOMICIDE— 

cases  involving    253.  261,  271,  447,  461,  466,  468,  474,  482,  484,  487, 

518,  534,  545,  681,  690 

by  drugs  with  intent  to  produce  abortion 447 

in  a  sudden  fight, — beer  glass  as  weapon, — question  and  in- 
struction as  to  a  deadly  weapon 261 

conviction  on  circumstantial  and  questionable  evidence,  ac- 
complice,  etc 468 

questions  as  to  justifiable  homicide  and  voluntary  manslaughter, 
where  it  was  claimed  that  several  persons  came  on  defend- 
ant's premises  in  a  riotous  manner  with  unlawful  intent. . . .  474 

committed  while  an  officer  and  posse,  in  the  night-time,  with- 
out notice  and  with  guns,  broke  into  a  house  to  arrest  de- 
fendant on  an  ordinary  charge.  The  court  should  have  in- 
structed on  the  duty  of  the  officer  to  give  notice  of  his 
intention  and  to  use  only  necessary  force 482 

conviction  set  aside  where  the  evidence  was  uncertain,  and 
another  had  been  since  convicted  of  killing  the  deceased..   484 

new  trial  granted  because  of  erroneous  instructions  and  rulings 
on  evidence,  and  improper  remarks  r.nd  interference  by  the 
court,  and  especially  in  prompting  a  witness,  and  telling  the 
jury  what  her  evidence  was,  etc 487 

verdict  for,  set  aside  because  of  coercion  of  jury  by  the  court  545 

murder  and  manslaughter — heat  of  passion  reducing  from  mur- 
der— defense  of  self  and  property,  etc 681 

self-defense.  Instructions,  challenge,  actual  bias,  etc 690 

see  also  Ski.f-defknse;  Insanity;  .IrixiE  and  Jikv;  Ahortion; 
CoNKESsio.Ns;  Evidence;   Instrlctio.ns,  etc. 

HUSBAND  AND  WIFE— 

as  witnesses  for  and  against  each  other,  see  Bicamy;  and 
notes    174-177 

INDICTMENT  AND  INFORMATION— 

sufliicient  in  language  of  statute 145,   177,   179 

language  of  the  statute  insufficient  when  it  falls  to-  describe 

the  essential  elements  of  the  offense 506 

must  Inform  accused  of  the  nature  of  the  offense;   this  right 

cannot  be  taken  away  by  statute 346 

note  on 317 

verification  must  be  of  facts,  not  on  belief 34!) 

should  describe,  in  arson,  a  jail  as  a  dwelling 130 

matters  of  description  cannot  be  rejected  as  surplusage  to  bring 

verdict  under  another  section  of  statute 130 

bribery  177,  Vi9 


446 


446 


19 


INDEX. 

727 

References  are  to  pages 
INDICTMPNT  AND  INFORMATIOV  t       .• 

burglary-should  allege  nie^^,u^,/'°"^l"r'^- 
In  the  building  .^      ^  ""^"*  ^°  ^^^^1  the  property  then 

^ia^;/Sr  "^- ^aiseV;p;esent^,o„s:;:;;;:::;:::---  ':i 

receiving  stolen  postage  stamps -Aeeri"  nc^i'^V. ^^^ 

from  whom  received                                 "^^"^  ownership,  nor 
repugnant 330 

variant,  repugnant  and'  Variant'  'et'c <*5 

raise  pretenses— "A  lartre  anmnVf  „V  i ", 440 

the  value  of  2700  dolfars  "  ?r.n  •    ''l  f"'^  ^^"^^  ^oods  of 
also  for  contradictory  alements'see"'"'''''"^  ^lescrip.i.n. . . .  429 
laying  ownership  of  property  bnrtiPri  in'tVi  V  '  1 421) 

"'£LI/S.sr'™='^  ™*''"»  '^  «SS.  an;,™.;,:  "^-^ 

intent  to  maim,  anti  intent  to  disflgu 
INSANITY— 


ire,  are  not  equivalent., 


isr, 
603 

cases  on 

general  notes  on. ..".'.'.'.". 518,  .'■)2r),  534 

special  issues  of  and  "practice  "thereon 541-.5 15 

one  trial  thereof  sufficient  ^^'^ 

common-law  judicial  discreiion  "thereon Ifr. 

delusional,  hreaistlble  Impulse.  "monomaS'.  .•.■.■.■;.■.■.■;  ul'  ^i"! 

^     ,  "paranoia"    ...  '  r.i- 

as  to  danger  from  mobs,  etc  . .  „i 

"l['crrf  "^'^  ^^^^-"^  '^^  ^^t  is't'he  ■r"e"s"uu"of  "suJi; 

22,  521.  ,^30,  532 

52,  542,  543,  ,541 

531 


53'; 


delusions    

"right  and  wrong"  test  not  conclusive 500 

expert  witness  on,  and  hypothetical  qu'e'stions. ."" 

h^  ttf  ^-  °'""'°"'  "P''"  "hearsay"  and  private  informat'ion" 
but  the  jury  must  know  upon  what  facts  and  commons 
such  opinions  are  based  lonnmons  _ 

'TnJe'llverhm'nn',  '''"''^'  oi'inions"  i.pon  ■the"a;tuare\:i".  " 
stated        .    .  ^   "'""'  ^  ''""'^''  '^'^  hypothetically 

Improper  hypot"h"etical"  "(iiicstio'ns".'.'.".'. K^I'fZ 

a  proper  hypothetical  question,  note    '  I,, 

reSi'trry'To'."'  '^^^'^^^]'^-^  "^  '^^^^  ■wit"ness"e"s"."«oie: ! ! ! .'  .544 

*  ^iZ^^i" "  ^^Vi^"'^    "^   ilefemlant-s"  "belia^io; "  s"u"bse"au"e"nt" "  to  "^ 
homicide,  held  competent,  note.  54. 

a  sheriff  not  competent  to  give  opinion  of"  "defeiidanl's' sanity 
from  having  heard  him  testify  in  another  case  523 

on  a  motion  for  new  trial  a  copy  of  a  .iudpment  of  a  county 
court,  finding  the  defendant  insane,  was  filed.  It  was  held 
that,  though  diligence  was  not  shown  in  producing  such  evi- 

.    rience  nor  in  bringing  witnesses  of  such  flndinp-,  vet  a  new 
trial  should  have  been  granted,  for  if  the  defendaiit  was  in- 
sane he  would  not  be  expected  to  show  diligence     . .  624 
INSTRUCTIONS- 

not  error  to  refuse,  where  the  court  has  distinctly,  unequivo- 
cally and  repeatedly  stated  the  panip  prlncipjp 125 

failure  to  ask  for  correct  instructions  does  not  cure  error  In 
those  given j  |o   ]  13 


■■■■■■■■■■il 


■Mil 


728 


AMERICAN  CRIMINAL  REPORTS. 


References  tre  to  pages. 

INSTRUCTIONS  (continued)  — 

on  self-defense,  erroneous 140 

error  to  instruct  that  the  offense  has  been  proven  to  have  been 
committed    31 

same — that  the  existence  of  the  offense  has  been  proven,  and 
that  the  jury  must  determine  who  committed  it.  Whether 
an  offense  had  been  committed  was  a  question  for  the  jury 
to    decide 588 

same — to  refuse  special  instructions  on  a  vital  issue  where 
evidence  is  close  and  conflicting 3 

same — as  to  the  use  of  a  deadly  weapon,  the  weapon  not  being 
per  se  deadly  (a  beer  glass) 4(>1 

same — as  to  a  pocket-knife  not  being  a  deadly  weapon 231 

same — that  defendant  should  be  convicted  if  the  jury  believe 
that  he  procured  some  other  person  to  give  the  drugs,  etc., 
there  being  no  evidence  to  that  effect 448 

erroneously  calling  the  jury's  attention  to  weak  and  irrelevant 
evidence  as  pointing  to  a  probability  of  guilt,  and  attaching 
too  much  importance  thereto,  is  not  cured  by  telling  tlie  jury 
not  to  be  unduly  prejudiced  thereby 468,  471 

because  defendant  claims  self-defense,  he  is  not  estopped  from 
asking  an  instruction  on  manslaughter 681 

error  to  instruct  that  possession  of  a  doubtful  pocket-book 
would  raise  a  presumption  of  guilt 468,  472 

same — that  jury  can  disregard  entire  evidence  of  a  witness  who 
testified  falsely  as  to  one  fact.  That  prechides  the  con- 
tingency of  honest  mistake.    The  falsity  must  be  intentional     44 

same — that  flight  presumes  guilt.  Fl'ght  is  only  one  drcum- 
Btance  to  be  considered  with  others,  and  the  motive  there- 
for, as  pointing  toward  guilt 474,  477 

where  a  witness  made  threats  to  swear  the  defendant  to  'lell, 
defendant  was  entitled  to  an  instruction  calling  attention 
to  the  witness'  animus 487 

an  ofScer  and  posse  with  arms,  and  without  notice,  in  the 
night,  broke  into  a  house  to  arrest  defendant,  charged  with  an 
ordinary  offense,  and  he  killed  one  of  them.  Instruction  that 
the  officer  had  a  right  to  do  so,  was  defective,  in  not  further 
stating  that  he  should  have  given  notice  of  hia  intention  and 
used  only  necessary  force 482 

that  defendant  is  not  guilty  if  jury  find  that  he  was  at  another 
place  at  time  the  offense  was  committed,  erroneous,  in  as- 
suming that  such  fact  must  be  proved  affirmatively ;?3,  51 

erroneous,  that  defendant,  indicted  for  keeping  gaming  tables, 
could  be  convicted  of  aiding  and  abetting  another  to  keep, 
etc 19 

error  to  instruct  that,  if  the  jury  are  convinced  beyond  n  rea- 
sonable doubt  of  the  truth  of  each  and  all  of  the  material 
allcpations,  they  may  And  the  defendant  guilty 136 

on  a  charge  of  assault  with  intent,  defendant  is  entitled  to  an 
instruction  that  he  shot  merely  to  scare 148,  151 

not  error  to  refuse  to  instruct  that  one  solicited  for  a  bribe  is 
an  accomplice 179,  189 

where  the  evidence  failed  to  clearly  connect  defendant  with  an 
alleged  prior  conspiracy  to  rob  deceased,  it  was  error  to  tell 
the  jury  that  the  prosecution  claimed  that  such  evidence 
connected  him  with  the  killing  of  the  deceased 261 

error  to  impair  the  statute  about  a  defendant  not  testifying, 
by  attaching  conditions  to  it 700 

same — to  refuse  to  instruct  the  jury  to  disregard  incompetent 
evidence    700 


INDEX. 


729 


140 

^e  been 

31 

>n,  and 
hether 
le  jury 

588 

where 

3 

:  being 

4fil 

234 

believe 
s,  etc., 

448 

ilevant 
aching 
e  jury 
, .  468.  471 
I  from 

681 

t-book 

. .   468.  472 

!s  who 

3   con- 

itlonal     44 

Ironm- 

there- 

.   474,  477 

)  'lell, 

3ntion 

487 

n  the 
1th  an 
1  that 
irther 
n  and 

482 

lother 

in  as- 

. . .  33,  51 

ablp.s, 

keep, 

19 

n  ren- 
terial 

136 

to  an 

.   148,  151 

ibe  is 

179,  189 
th  an 
o  tell 
ilenoe 

261 

'ying, 

700 

etent 
700 


74 


References  are  to  pages 
INSTRUCTIONS  (continued)- 

charglng  force  and  violence  (robberv)  not  i«  ,, 

errrelTinnSinTrbJ?,  ""'^^^^^^^ 

^  cured  by  giving  o'lfe  on rarabIeSr\h^^  *°  ^"  ^'^'^ 
duty  of  court  to  Instruct  correcUv  and^  "^^^     .^'''  '"  '""'''^'^    ^^ 
entitled  to  an  instruction,  it  is  the  dutv  }^T^''^  '™"'''  ^^ 
the  same  on  its  own  motion  ^  ^  ^^^  *=°"''^  ^o  give 

where  plainly  incorrect  in  princinle 'iinV^i/rlV  i ^l.  73 

error  to  refuse  to  charee  tiinV  thf    '    ^  "^'"^^^  ^^  others. . . .     399 

the  clefendant  woSK  stearor'nrr'^*'"^"'  '^^  '«'  ^^at 
of  his  church  society.  misappropriate  the  money 

and  further  error  to  teli  the" iilrv' JiUi "^ ; 700 

sumption  that  the  court  know7o^^  *''"'"  ''  '^^  ''''^  P^«- 

Bee  also  Homicide;  Self-defense,  etc. ^00 

INTENT— 

ior  specific  criminal  intent,  see 

as  to  an  accomplished  object        ■'"'  l-'S-  1'''3 

general  notes  thereon. . .       ,"  • ' 153,  198 

In   burglary l5u-lo8  and  200-206 

In  malicious  mischief. 192 

absence  of,  to  defraud. .  ..*.*...".".'.'.'.. ^^^'  ^^^ 

JEOPARDY—  ^^^ 

'"^quSSoS^of  Sift'.!'  '"^''  ^^''^^"^^  ^^^  ^-^  -ay  disagree  on 

conviction  on  bad  Indictment,  no  bar ^"^ 

same— for  bigamy,  not  a  bar  to  a  trial  VoV  adiiVterv ' 

but  see  Fobmer  Acquittal.  aciuitery 

JUDGE  AND  JURY— 

absence  of  judge  from  court  room... 

the  judge  has  no  right  to  coerrp  thp  imV "\l'""V^' 

ative,  by  commands.'^thJelt:.  ins  m^.Jtions'dur ^3"^".'; 
protuse  and  repeated  argumentation  on  tke  neSsit?ei  S 
justice,  economy,  public  policy,  etc.,  to  seek  to  overcome  the 
opinions  and  judgment  of  the  jurors  to  bring  about  auTgi^e 

^"mL\f  ?"'.'^  T"^^  Vubjec'ted'  to'privations'and  hardships'  ihat 
might  test  their  physical  endurance  and  that  m  ght  oaus- 

norshouTrthrb'  W^  r''^'  ^^^"^  physical  "eSausTn: 
nor  snould  they  be  induced  to  agree  to  a  verdict  for  fear  J 
censure  upon  their  mtelli.e.ce  or  integrity.   ?  ...     ''  °^  545 

error  for  judge  to  tell  jarors  that  they  must  agree-  and  ilr.; 
hS/n^'■"'''"'^°J  *"^^  ^'  ^  '•^a^""'  ^°d  make  CO  er 
agret  1    and^h«t"!  T""   '^"'  ""  '"^'^fi^'t^ly  "'"ess  tliey 
?oSsio'n"  of'flSipSfcr"^'^*  "°"''  ^'"^^^  ^'"""'^^  ^°  -,, 

Jury  kept  out  eighty-four  hours  with  poor  "faciiities 'for  sleep 
while  several  times  informing  the  judge  that  they  could  not 
agree   -,_ 

verdict  so  obtained  should  be  set" aside.' ".'.".' .'.'.'.*." 545 

error  to  tell  jurors  that  unless  they  agreed  they  m'igiit'be "shut 

up  for  two  days,  as  he  was  going  away 534 

same— to  agree  or  be  locked  up  four  days  without  adequate 

aid  or  protection _        554 

same— that  they  would  be  kept  together"  imt'li  the  "end" of  "tlie 

term  unless  they  agreed 555 

same— that  if  they  did  not  soon  agree  they  would' be  takeii 

with  the  court  to  another  county 555 


24 

24 


713 


545 


730 


AMERICAN  CRIMINAL  REPORTS. 


References  are  to  pages. 

JUDGE  AND  JURY  (continued)— 

same — that  the  court  could  see  no  reason  why  they  could  not 

agree — note    560 

same — "that  in  view  of  the  testimony  in  this  case  the  court 

is  utterly  at  a  loss  to  know  why  twelve  honest  men  cannot 

agree  in  this  case" — note 561 

same — "it  seems  strange  that  you  would  fail  to  agree,  when 

there  is  so  little  conflict  in  the  evidence" — note 562 

same — to  teil  Jury  what  the  evidence  was  on  a  former  trial. . .  495 
same — to  make  comparisons  that  exploit  some  witnesses  and 

disparage  others — note 504 

samo — to  say  that  there  is  evidence  of  defendant's  guilt 505 

same — to  express  an  opinion  as  to  the  identity  of  an  oil  can, 

and  leading  a  witness  to  express  a  similar  opinion 505 

suggestions  regarding  such  matters — note 506 

on  refusing  an  instruction  to  disregard  immaterial  evidence,  it 

is  error  to  remark  that  there  are  purposes  for  which  it  may 

be   considered 700 

JURORS— 

challenges  to  panel 179 

defendant  not  allowed  to  examine  jurors  as  to  their  interest  in 
the  prosecuting  corporation,  nor  as  to  whether  they  were 
related  to  persons  who  were;  held  on  appeal  that  there  was 
no  error  in  refusing  a  new  trial,  since  there  was  no  afllrma- 
tive  showing  that  any  such  disqualifled  juror  was  on  the 

panel    129 

criticism  on  this  doctrine — note  130 

misconduct  of,  in  discussing,  in  their  deliberations,  the  failure 

of  the  defendant  to  testify 419 

where  an  alien  sat  on  the  jury,  held,  that  defendant  was  not 
entitled  to  a  new  trial,  because  (1)  he  did  not  question  him 
as  to  his  citizenship,  and  (2)  that  alienage  was  not  a  dis- 
qualification that  affected  the  juror's  intelligence  and  im- 
partiality      183 

where  there  is  no  abuse  of  discretion,  ^.;d  the  evidence  is  con- 
flicting, the  discretion  of  the  court  in  passing  upon  the  par- 
tiality of,  will  not  be  interfered  with  125 

challenge  for  bias  can  only  be  reviewed  on  questions  of  law..  690 
the  judge  should  be  the  more  careful  to  secure  only  unbiased 

jurors 690 

a  challenge  generally  for  actual  bias  is  sufficient 179 

LARCENY— 

cases  on 563,  567,  570,  577,  581 

not  where  owner  voluntarily  parts  with  property,  although  he 
may  have  been  Induced  to  do  so  through  fraudulent  and 
unfair  representations 563 

taking  property  openly  under  an  honest  though  mistaken  claim 
of  right,  is  not 567 

such  taking  without  subsequent  effort  at  concealment,  with  an 
avowal  of  right,  raises  a  strong  presumption  that  there  was 
no   felonious   intent 567 

not  required  to  explain  the  possession  of  alleged  stolen  prop- 
erty to  the  satisfaction  of  the  jury — sufficient  to  raise  a  rea- 
sonable doubt  as  to  the  same note  570 

to  rebut  the  existence  of  the  necessary  specific  intent  to  steal, 
it  is  proper  to  show  the  defendant's  intoxicated  condition 
before  and  at  the  time  of  the  offense,  and  it  is  error  to  ex- 
clude such  evidence 570 

drunkenness  incidentally  considered  in  relation  to 577 


INDEX 

731 

Referenr^eg  are  to  pages. 
LARCENY  (continued)— 

if  the  taking  was  not  with  an  intPnt  at  »»,«  *< 

subsequent  appropriation  would  not  mn.ifh    ?^,  /°  ''*^^''  ^ 
life  sentence  under  KentmkyrbitualrHm  «!.'"''"« ''''"'^"y  ^77 
because  the  jury  had  not  flLcl  thrpna^ and  hail  ^ntr'''^ 
fully  instructed  thereon '      ^'  """  "'^•'  ""t  been 

MALICIOUS  MISCHIEF—  ^^^ 

MALICIOUS  TRESPASS—  ^^^ 

driving  a  herd  of  sheep  over  another's  domain     ti,o  „,„i. 

essential  is  more  than  the  ordina,^  VSe  or  al'   nlaw  ul 
fhf  ™7*^f  ^  ""''  ?^  ^  deliberate  intention  ;o  in  ure  r,,8 

the  mischief  must  be  the  prime  objoct.  not  an  incideni t\l 

''^'''a;;ss:s:'Sc^''"  ^^^^^^-  «^^ "»— =  SKu..;.;.  •.: 

MAYHEM— 

defined;  intent  to  disfigure  Is  not  Intent  to  maim  p,n<i 

MOTIVE—  """* 

resorted  to   to  explain  what  otherwise  might  be  doubtful   and 

?roV?h''  ''^7"«^d«••?"  ^'hen  it  legally  and  logically  arfRes 
from  the  evidence.    It  cannot  be  imagined...  700 

MUNICIPAL  ORDINANCES— 

requiring  owners  to  remove  snow  from  sidewalks  void   (see 

oU7 

NEW  TRIAL— 

new  and  material  evidence  discovered  after  trial,  is  ground  for  (113 

an  order  granting,  cannot  be  vacated ,|  i) 

error  to  vacate  same  and  impose  sentence yjo 

newly-discovered  evidence  as  to  ii.saiiiiy  is  KrouiVd'therofoV 
even  though  it  might  have  been  discovered  before  with 
diligence  ^23 

PERJURY— 

where  defendant  was  charged  with  perjury  in  denying  inter- 
course on  a  trial  for  adultery,  bold  that  the  acquittal  for  the 

latter  was  a  bar  to  the  former,  being  res  adjiidicala 625 

PERSONAL  LIBERTY— 

a  curfew  ordinaine  prohibiting  all  persons  under  twenty-one 
years  of  age  from  being  upon  the  streets  alter  the  ringing  of 
the   curfew   bell,   being  an    unreasonable   internrence   with 

personal  liberty,  is  void C33 

PLEA.    See  Pi.kadino  am)  Pi!actick. 
PLEADING  AND  PRACTICE— 

should  raise  matters  rit>/io;s  the  record  by  plea,  not  by  motion 
to  quash 24 

should  pleaci  to  the  jurisdiction  l)efore  plea  of  not  guilty. ...,.'     24 

the  fact  that  defendant  was  called  before  the  grand  jury,  but 
was  advised  of  his  rights  before  testify'  ■,  is  not  ground  to 
quash   102 

a  conviction  without  arraignment  and  plea  before  trial  is  void  645 

the  defendant  may  sue  out  a  bill  of  exceptions  to  review  errors 
without  moving  for  a  new  trial 637 

the  Supreme  Court  will  by  mandamus  compel  the  judge  to  sign 
such  bill  of  exceptions 637 


732 


AMERICAN  CRIMINAL  REPORTa 


References  are  to  pages. 

PLEADING  AND  PRACTICE  (continued)  — 

on  appeals  by  the  State  it  is  not  necessary  to  set  out  the  evi- 
dence in  extenso;  still  there  should  be  enough  to  show 
whether  instructions  were  applicable  to  the  evidence. .......  643 

reserving  right  to  call  witness  out  of  order 261 

necessary  to  preserve  exceptions 159 

records  should  be  condensed 226 

error  claimed  in  forcing  defendant  to  plead  and  go  to  trial  the 
same  day  will  not  be  reviewed   where  the  record  fails  to 

show  that  he  objected  in  the  court  below 688 

see  also  Trial;   I.mjrtmknt,  etc. 

PRESUMPTIONS— 

rebutted  by  evidence,  cease  to  be  factors  In  a  case 159 

in  bigamy  the  presumption  of  legality  is  equal  as  to  each 
marriage    169 

an  avowal  of  right  to  take  property,  with  no  effort  at  conceal- 
ment, raises  a  strong  presumption  of  innocence 567 

vendor  taking  a  mortgage  on  goods  sold,  raises  a  presumption 
that  he  did  not  wholly  rely  upon  the  representations  of  the 
buyer   430 

the  presumption  is  that  the  defendant  is  innocent,  and  ignorant 
of  the  particulars  of  the  charge  against  him,  and  is  there- 
fore obliged  to  seek  the  same  in  the  indictment 429 

where  the  court  admonished  the  foreman  of  the  grand  jury  to 
take  no  part  in  considering  a  certain  case,  the  presumption  is 
that  although  he  indorsed  the  indictment,  "A  true  bill." 
he  did  not  take  a  part  in  finding  it 588 

PROSECUTING   ATTORNEY.    See  Argument   of   Counsel;    Evi- 

DENCE. 

RAILROADS— 

a  railroad  company  cannot  confer  upon  certain  hackmen  the 
exclusive  privilege  of  plying  their  business  on  its  station 
grounds  651 

RAPE— 

on  a  trial  for,  it  was  error  not  to  allow  the  defendant  to  prove 
"his  reputation  for  morality,  virtue  and  honesty  in  living"..  655 

"honesty"  as  used  in  the  foregoing  context  means  chastity  or 
sexual  propriety 655 

under  the  statute  an  unchaste  woman  does  not  necessarily 
mean  a  prostitute 660 

a  girl  having  had  previous  intercourse  Is  not  "previously 
chaste"    660 

indicted  in  Nebraska,  but  defendant  previously  had  inter- 
course with  the  girl  in  Iowa;  held,  she  was  not  previously 
chaste 660 

husband  cannot  rape  his  wife;  can  only  be  guilty  of  procuring 
another  to.  But  where  the  other  is  acquitted,  the  case 
against  the  husband  falls — note 664 

REASONABLE  DOUBT— 

element  of,  should  not  be  eliminated  from  instructions 690 

suificient  on  question  ot  alibi 31,  33,  51 

and  Lee  Alibi;   Self-defense;   Larceny,  etc. 

RES  ADJUDICATA.    See  Foumeb  Acquittal;  Change  of  Venue. 

RES  GEST.iE 51,  179,  391,  461 

RESISTING  ARREST— 

not  unlawful  to  resist  arrest  under  a  void  warrant.  The  war- 
rant describing  the  offense  as  threatening  a  breach  of  the 
peace,  does  not  describe  a  crime  and  is  void 664 

also  resisting  a  posse  in  the  night,  etc 482 


rra 


set  out  the  evl- 
mough   to   show 

evidence 643 

261 

159 

226 

,d  go  to  trial  the 

record  fails  to 
688 

ase 159 

qual   as  to   each 

169 

effort  at  conceal- 

nee 567 

33  a  presumption 
mentations  of  the 

430 

3nt,  and  ignorant 
m,  and  Is  there- 

lent 429 

he  grand  jury  to 
le  presumption  is 
t,  "A  true  bill," 
588 

F   Counsel;    Evi- 


ain  hackmen  the 
3S  on  its  station 
651 

;fendant  to  prove 
lesty  In  living"..  655 
neans  chastity  or 

655 

i  not  necessarily 

660 

not  "previously 

660 

ously  had  inter- 
as  not  previously 

660 

lilty  of  procuring 
auitted,  the  case 
664 

jtructions 690 

31,  33,  51 

HANGE  OF  Venue. 
51.  179,  391,  461 

arrant.  The  war- 
t  a  breach  of  the 

d 664 

482 


INDEX.  ^33 

References  are  to  pages. 

RIGHTS  OP  ACCUSED— 

^"tH^f  .!°.*^?!^**"''®  of  counsel  to  prepare  motion  for  new 

to  deny  reasonable  time'therefoVis'to  deny  "a  right Sr, 

tried,  convicted  and  sentenced  the  same  day.  Held'  VheVe  was 
no  necessity  for  undue  haste;  that  the  desire  o  rhelZl 
to  adjourn  that  day  was  no  justiflcation;  that  it  were  better 
i?gh?8      .°!  adjournment  than  to  deprive  defendant  of  Ms 

ROBBERY— 

suddenly 


CG7 


snatching   a  purse   without   force, 


resistance,  is  larceny  "from  the "personTand  L"ot"oSy    "^ 
SCIRE  FACIAS— 

judgment  on  ball  bond  void  unless  service  is  had  according  to 

inirSgment  i^UL  .'"^"..^'^  ^"'^'"^'^^  "'^  ''''  ^^« 

the  offense  must  be  designated  with  certainty  in' tiie  "bond-'a 

*    misdescription  renders  the  judgment  based  thereon  void.'... 

SEARCH-WARRANTS.    See  Constitutional  Law 
also  note  on 

SELF-DEFENSE— 
cases  on 
general  notes  on 


C7i 


678 
679 


379 


140,  681,  690 


killing  in  self-defense  not  murder,  eveii" thoii'gh  the  siayer*mav~ 

entertain   express  malice • ggi"   ggo 

neither  is  it  murder  to  kill  in  the  defense  of*  oiie's' property' 

at  most  it  would  be  manslaughter 681   687 

one   may   use   adequate   force   to   resist   unlawfiii '  aggression 

upon  his  property ^35    ggy 

not  true  that  the  right  of,  does  not  imply  the  right  of  "attack. '  687 
not  true  that  a  person  has  no  right  to  put  himself  in  the  v/ay 

of  being  assaulted gg^ 

defending  a  fence .............,*,  687   689 

the  element  of  reasonable  doubt  must  not  be  eliminated  from' 

instructions    on ggQ 

where  deceased  was  the  aggressor,  in  order  to  suspend  defeiid- 
anfs  right  of,  the  aggressor  must  have  made  known  his  de- 
sire to  decline  further  combat 690 

threats  without  overt  acts  as  an  element  in 693 

voluntarily  entering  into  a  combat,  etc .!!!!...  693 

instructions  on,  given  and  refused "  "  G93 

the  right  of.  should  not  be  limited  by  defendant's  ability  to  dis- 
tinguish between  felonies  and  misdemeanors 694 

passion  and  malice  antagonistic  elements 695 

error  for  the  court  to  comment  on  the  defense  of,  disparag- 
ingly, to  the  jury 693 

SELF-INCRIMINATION— 

one  cannot  be  forced  to  incriminate  himself;  and  evidence 
obtained  from  him  by  compulsion  is  not  competent  to  be 

used  against  him 695 

notes  on 698-700 

STATUTES— 

construction  of,  on  abortion — child  living  or  dead 3 

construction  of,  on  arson 125,  130 

construction  of,  on  mayhem 603 

construction  of  as  to  unborn  child 466 

words  not  to  be  restricted,  nor  are  they  to  be  extended  beyond 
their  common  interpretation 238 


--■  "'-"J 


T31 


A3IERICAN  CRIMINAL  REPORm 


References  are  to  \»gea. 

STATUTES  (continued)— 

defendant  entitled  to  reasonable  doubt  as  to  whether  the  case 

comes    within 238 

cannot  make  insufflolent  description  of  offense  sufficient. .  346,  506 
canno*  abolish  the  right  of  the  accused  to  be  confronted  by 

the  witnesses  against  him 330 

granting  a  municipality  unwarranted  power,  void 607 

requiring  peddlers  to  procure  license,  void 324 

TRIAL— 

wrong  to  confront  a  defendant,  on  trial  for  a  specific  offense, 
with  an  array  of  alleged  improper  acts  and  moral  delin- 
quencies; they  tend  to  confuse  the  issue  and  prejudice  the 
defendant;  and  he  is  not  to  be  expected  to  be  able  to  meet 

them 700 

same — as  to  alleged  assault  upon  a  female  servant 700 

same — as  to  arbitrary  treatment  of  his  inferiors 700 

same — as  to  letters  of  admonition  from  his  bishop 700 

same — as  to  disbarment  and  expulsion  from  church — note 713 

same— as  to  rumors  of  previous  fires  (defendant  being  charged 

with  burning  a  parochial  school ) 700 

same — to  admit  evidence  that  a  town  marshal  alleged  to  be 
friendly  towards  defendf.nt,  had  arrested  a  witness  for  the 

prosecution  226 

absence  of  the  judge  from  the  court  room  is  to  try  defendant 

without  due  process  of  law 713 

defendant  may  show  that  prosecuting  witness  tried  to  induce 
his  bondsmen  to  withdraw,  for  the  purpose  of  showing  his 

animosity   442 

right  to  counsel  and  time,  see  Rkjiits  ok  Accl'sed. 
sickness  of  counsel,  see  Coun.sel. 

see,  further,  Akoitment  of  Coi'xskl;  Evidence;  Judge  and 
Jury;  Juiioiis;  Pleadixo  and  Practice,  etc. 

VARIANCE— 

between  allegations  as  principal  and  proof  as  an  accessory  13, 17, 19 
between  information  and  proof  as  to  adultery  (see  Adultery)   349 

same — as  to  dwelling-house  and  a  smoke-house 192 

same — as  to  names  pleaded  and   proved 432 

instances  of 446 

VENUE— 

where  no  one  witness  located  it,  it  may  be  gathered  from  all 

of  the  evidence 108 

see  also  Change  of  Venue. 

VERDICT— 

not  reversible  error  to  omit  giving  form  of,  for  "not  guilty," 

when  not  requested 253 

finding  "the  prisoner"  guilty,  good 657 

WITNESSES— 

examination  of,  more  appropriate  function  of  counsel;   rarely 

necessary  for  the  court  to  do  so 449 

may  be  asked  if  he  had  been  arrested  and  sent  to  jail 51 

contra,  note 73 

calling  out  of  order 2C1 

defendant's  inalienable  right  to  examine 330 

instruction  as  to  hostile 482 

same — as  to  false  testimony  of  (see  Evidence) 44 

husband  and  wife  cannot  be,  for  or  against,  even  by  consent: 

and  notes  on  (see  Bigamy) 174-177 


1 1 


lether  the  case 
238 

mfflnlent. .   346,  50« 
confronted  by 
330 

)lcl 607 

324 

ipeclflc  offense, 
1  moral  delin- 
1  prejudice  the 
e  able  to  meet 

700 

nt 700 

700 

P 700 

rch — note 713 

being  charged 
700 

alleged  to  be 
ifltness  tor  the 
226 

try  defendant 

713 

rled  to  induce 
if  showing  his 

442 

;u. 

e;    Judge   and 

accessory  13, 17, 19 
see  Adultery)   349 

192 

432 

446 

lered  from  all 
108 

■  "not  guilty," 

253 

657 

ounsel;  rarely 

449 

)  jail 51 

73 

201 

330 

482 

44 

n  by  consent: 
174-177 


